Iranian Nobel Peace Prize Winner Joins Battle Against US Treasury Department for Free Speech
New York, NY (October
27, 2004)— Shirin Ebadi, the Iranian human
rights activist who was awarded the Nobel Peace Prize in 2003, has filed suit
against the U.S. Treasury Department in federal court in New York because
regulations of the Treasury Department’s Office of Foreign Assets Control
(OFAC) prohibit the publication of a book she wants to write about her life and
her work for readers in the United States. Ms. Ebadi and The Strothman Agency, LLC, a literary agency that wants to work
with her, filed the suit which will be joined to a legal challenge mounted by
publishers and authors last month.
predicament provides a perfect illustration of the harm the OFAC regulations
cause. Ms. Ebadi has been imprisoned for her human rights work in Iran. She could
not publish the book she wants to write in Iran,
but the OFAC regulations also prevent anyone from publishing it in the United States.
As long as the regulations stand, the book will not come into being.
The regulations were first
challenged in a lawsuit filed on September 27, 2004, by the Association of
American Publishers Professional and Scholarly Publishing division (AAP/PSP),
the Association of American University Presses (AAUP), PEN American
Center (PEN), and Arcade
The publishing and
authors’ groups point to Ms. Ebadi as exactly the kind of author whose
work should be published in the United
States. "Do we really want to deprive
an Iranian human rights activist of the opportunity to communicate with the
American public?" asked Marc H. Brodsky, Chairman of AAP/PSP and Executive
Director of the American Institute of Physics. "These regulations are
counter-productive and should simply be scrapped." Brodsky also responded
to recent statements OFAC has made in defense of the regulations, in response
to the September 27 suit: "According to OFAC, publishers who have concerns
should just come to them for a license, but publishers should not have to ask
their government for permission to use their constitutional right of free
The regulations stem from U.S. trade
sanctions imposed on particular countries. Congress has declared that trade
embargoes may not be applied to "information and informational
materials," but OFAC has defied that prohibition and maintained
regulations that prohibit the publication of many books and articles by authors
in Iran, Cuba and Sudan. The regulations are being
challenged as violations of the specific instructions
of Congress as well as the First Amendment.
The OFAC regulations
specifically forbid the publication of works by authors in Iran, Cuba
unless the works in question have already been completed before any American is
involved. Americans may not co-author books or articles with authors in the
embargoed countries and may not enter into "transactions" involving
any works that are not yet fully completed—even though authors,
publishers an agents generally must work with one another well before a new
work is fully created—and Americans may not provide "substantive or
artistic alterations or enhancements" or promote or market either new or
previously existing works from the affected countries, unless they obtain a
specific license from OFAC. Violators are subject to prison sentences of up to
10 years or fines of up to $1,000,000 per violation.
Both Ms. Ebadi and the
groups that initiated the challenge agree that Ms. Ebadi is only the most
prominent example of a valuable voice that has been silenced. "There are
untold numbers of less prominent authors whose stories have no chance of
reaching us. The embargoes are cutting Americans off from scholars, dissidents,
scientists and others in regions that are of enormous public concern,"
said Peter Givler, Executive Director of AAUP. He
cited books on history, music and archaeology that university presses have been
unable to publish, and even an article that had to be withdrawn from the
scholarly journal Mathematical Geology. "Ms. Ebadi’s inability to
publish her memoirs provides another example of the chilling effect the
regulations are having on publishing in America."
In her court filing, Ms.
Ebadi decries the "enforced silence" the OFAC regulations impose,
calling it "a critical missed opportunity both for Americans to learn more
about my country and its people from a variety of Iranian voices and for a
better understanding to be achieved between our two countries."
"At a time when
building mutual understanding between peoples and nations seems to us more
urgent that ever, these regulations only serve to reinforce distances and
divisions," said Larry Siems, Director of the
Freedom to Write and International Programs at PEN American
Center. PEN and Arcade are planning to publish an anthology of works by
Iranian writers, poets, and critics since the Iranian Revolution that expose
the turmoil and repression of recent years. "Some of the work can’t
be published in Iran
because of government censorship there," said Dick Seaver
of Arcade Publishing. "If publication is blocked by government
interference here, what’s the functional difference between Iran’s
censorship and ours?"
The groups challenging the
OFAC regulations point out that the regulations violate the Trading with the
Enemy Act (TWEA), the International Emergency Economic Powers Act (IEEPA) and
the First Amendment. TWEA and IEEPA were twice amended by Congress, in the
Berman Amendment and the Free Trade In Ideas
Amendment, to make it clear that transactions involving "information and
informational materials" are exempt from trade embargoes. The AAP/PSP,
AAUP, PEN, and Arcade contend that OFAC’s regulations directly contradict the statutes
that authorize trade sanctions and infringe the First Amendment rights of
publishers, authors and the public. "Accordingly to Congress and the
Constitution, Americans are entitled to receive ideas and information from
authors anywhere in the world," said the organizations’ lead
counsel, Edward Davis. Ms. Ebadi’s suit makes the same contentions on
behalf of authors and the literary agents who help them prepare and market
Since the effect of these
OFAC regulations became clear late in 2003, as a result of several rulings
issued by OFAC, publishers, authors, and public interest groups have pursued a
number of paths to making OFAC enforcement consistent with the protection for
"information and informational materials" mandated by Congress in the
Berman Amendment and the Free Trade In Ideas Amendment. "We decided to
pursue the legal challenge because our efforts have not yet yielded a
resolution that is satisfactory on either the law or the principle,"
explained Mr. Brodsky. The plaintiffs hope for a decision early next year.
Edward Davis and Linda
Steinman of the New York office of Davis
Wright Tremaine are lead counsel for the AAP/PSP,
AAUP, PEN and Arcade. Marjorie Heins of the Brennan
Center for Justice at NYU and law
professor Leon Friedman are co-counsel for PEN and Arcade.
Ms. Ebadi and the Strothman Agency are represented in
their suit by Philip A. Lacovara, Anthony J. Diana
and Ryan P. Farley of Mayer, Brown, Rowe & Maw.
For links to the relevant OFAC rulings, the legal papers of AAP/PSP, AAUP, PEN
and Arcade, and additional materials, visit http://aaupnet.org/ofac.
About the AAP/PSP
of the Professional/Scholarly Publishing (PSP) Division of the Association of
American Publishers, Inc. (AAP) publish the vast majority of materials used in
by scholars and professionals in science, medicine, technology, business, law,
reference, social science and the humanities. The Division's (www.pspcentral.org) 182
professional societies, commercial publishers and university presses produce
books, journals, computer software, databases and electronic products.
About the AAUP
counts among its members 111 nonprofit scholarly publishers affiliated with
research universities, scholarly societies, research institutions and museums
located in 43 states. Collectively they publish around 10,000 books each year
and over 700 journals in virtually every field of human knowledge.
About PEN American
PEN American Center is an organization of over 2,500 prominent
novelists, poets, essayists, translators, playwrights, and editors. As part of
International PEN, it and its affiliated organizations have defended free and
open communication within and among nations for more than 80 years. The 2,500 PEN American
Center (www.pen.org) members are a major
voice of the national and international literary community.
Arcade Publishing, Inc. (www.arcadepub.com)
is an independent book publisher based in New
York City. Founded in 1988, it publishes fiction and
nonfiction by authors from around the world, including works by some of the
most prominent authors of our time. Arcade is
the publisher of the upcoming PEN Anthology of Contemporary Iranian Literature.
Anna Kushner (PEN); 212-334-1660 x106
Brenna McLaughlin (AAUP); 212 -989-1010 x24
Marc Brodsky (AAP/PSP);
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