los angeles—The First Amendment of the United States Constitution – the one prohibiting the government from “abridging the freedom of speech”– was back in the news early this year, after Janet Jackson’s “nipple effect” led to crackdowns on the shock-jock superstar Howard Stern, zero-tolerance firings of arty public-radio contributors (for saying “fuck” on the air), and a proposed twenty-fold increase in federal fines against “indecent” broadcasting.
But miles away from the front lines of the Culture War, a longer-running and far more blatant encroachment on free expression by the Bush Administration was barely being noticed. Since September, 2003, it has been official U.S. policy that any American editor publishing a piece of writing from a country under a full trade embargo –meaning Iran, Cuba, Libya, or Sudan – is expressly prohibited from engaging in “activities such as the reordering of paragraphs or sentences, correction of syntax, grammar, and replacement of inappropriate words.”
In other words, use a blue pencil, goto jail – for up to ten years (and be subject to a maximum fine of $250,000). Until recently, it was a restriction that most publishers either didn’t know about, or quietly accepted. On September 30, 2003, the Office of Foreign Assets Control (ofac), which is the arm of the Treasury Department charged with enforcing the 1917 Trading with the Enemy Act, informed the world’s largest engineering association, the Institute of Electrical and Electronics Engineers (ieee), that articles from Iran (and, therefore, from other fully embargoed countries) could be published in the U.S. only if they could be printed with no additional editing or even illustration. (The ieee had earlier approached ofac because of a dispute over whether the engineering body could bestow benefits upon its several hundred Iranian members without its being considered trading with the enemy.) Exceptions, the September directive stated, were possible only if publishers obtained a special licence from ofac, best known, over the last few decades, for adjudicating the applications of Americans who want to visit Cuba.
The Institute complied, and stopped editing all published material originating in Iran. Word travelled over the technical-publishing grapevine, and several small journals stopped accepting Iranian manuscripts altogether.
Then on January 23, the Association of American Publishers (AAP) issued a detailed legal analysis arguing that ofac’s new rules violated not only the First Amendment of the Constitution, but Congress’s 1988 Berman Amendment, and the 1994 Free Trade in Ideas Amendment, which specifically allow for the exchange of informational materials with countries under embargo. The new restrictions, argued AAP’s vice-president for legal affairs, Allan Adler, “constitute a serious threat to the U.S. publishing community in general and to scholarly and scientific publishers in particular.” Members of the AAP, such as the American Chemical Society, began announcing their intention to ignore the regulations and fight them in court if pushed.
On February 28, The New York Times brought the issue to national attention, setting off alarm bells in the wider publishing and First Amendment-protecting communities. But in the ensuing spate of articles and complaints, one question remained unanswered: Just what the hell were the feds thinking?
“It’s particularly incomprehensible to us, because what could a few commas possibly have to do with national security?” asked Gene Smith, spokesperson for Howard Berman, the Los Angeles congressman whose eponymous amendment is the main statutory protection for books and articles originating from the Axis of Evil.
Berman, in a sharply worded letter of protest to ofac director Richard Newcomb, called the ruling “patently absurd” and “clearly inconsistent with both the letter and spirit of the law,” adding: “It is my understanding that ofac’s narrow and misguided interpretation of the law has threatened the publication of a number of worthy manuscripts, including a book of poems written by Iranian dissidents. I fail to see how this serves the interests of the United States in any way, shape or form.”
The Iranian exile community, which numbers in the hundreds of thousands here in “Tehrangeles,” were only in late March beginning to grasp that these restrictions, if fully enforced, could prevent dissident writers from having their work published in the U.S. and inflict chilling damage on the burgeoning academic field of Iranian Studies. “It’s just a blanket-type thing covering all written pieces in all domains? Wow, I mean, it doesn’t make any sense to me,” said Hossein Ziai, director of ucla’s Iranian Studies program, which he describes as “one of the largest in North America, if not the largest.”
“How can you translate without copy editing?” Ziai asked – one of the vexing questions ofac has yet to clarify. “There literally is no such thing as literal translation,” added Juan Cole, a professor of Modern Middle East and South Asian History at the University of Michigan. “It doesn’t exist.”
Cole describes the ofac directive as “a piece of stupid bureaucracy,” not to mention explicitly counterproductive to undermining the Iranian theocracy, a goal that he and everyone interviewed for this article shared. “It is not beneficial to the United States to be deprived of access to the findings of Iranian social scientists,” he said. First-Amendment scholar Eugene Volokh, who emigrated to the U.S. from the Soviet Union in 1975, called the restrictions “perverse,” adding: “What’s more, . . . some people might be bothered by technology transfers to Iran, but this limits the technology transfer from Iran.”
So what does the Office of Foreign Assets Control have to say for itself? “There are kind of two things that are important for us,” said ofac’s Public Affairs Specialist (Enforcement), who didn’t want her name used, even though it’s readily available at
Number two, we do need to follow these sanction laws – they’re there to protect our security; they’re there to protect American interests; they’re there to help protect and promote a better life for the freedom-loving people, in societies like Cuba. . . . So right now what we’re doing is trying to balance our national-security concerns along with the critical goal of allowing open and free flow of information.”
But doesn’t enforcing this standard directly “prohibit the flow of information?” “And that’s why I said we’re working right now to balance that.” What about apparent contradictions to the Berman Amendment?: “I’m not going to comment.” Criticism that disidents will suffer the most?: “Again it goes back. This is a concern.”
Which leaves real interpretation to outsiders. “It’s a long-standing issue that the bureaucracy of the federal government has often wished to find some way of limiting Americans’ interactions with those countries they consider to be enemies,” Professor Cole said. “With these policies they throw mud at the wall and see what sticks.”
The outcry has caused ofac to remove some of that mud – a new clarification was expected in April. “We’re in the process of reviewing that rule,” the ofac spokeswoman said, adding the improbable, “I think whatever we’re going to come up with, everyone’s going to be happy.”
