US guvmint moves to silence publishers

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U.S. government moves to muzzle dissident voices

 

 

 

By Scott Martelle | Associated Press

December 7, 2004

 

In the summer of 1956, Russian poet Boris Pasternak -- a favorite of the

recently deceased Joseph Stalin -- delivered his epic " Doctor Zhivago "

manuscript to a Soviet publishing house, hoping for a warm reception and a fast

track to readers who had shared Russia's torturous half-century of revolution

and war, oppression and terror.

 

Instead, Pasternak received one of the all-time classic rejection letters: A

10,000-word missive that stopped just short of accusing him of treason. It was

left to foreign publishers to give his smuggled manuscript life, offering the

West a peek into the soul of the Cold War enemy, winning Pasternak the 1958

Nobel in literature and providing Hollywood with an epic film.

 

These days, Pasternak might not have fared so well.

 

 

 

 

 

In an apparent reversal of decades of U.S. practice, recent federal Office of

Foreign Assets Control regulations bar American companies from publishing works

by dissident writers in countries under sanction unless they first obtain U.S.

government approval.

 

The restriction, condemned by critics as a violation of the First Amendment,

means that books and other works banned by some totalitarian regimes cannot be

published freely in the United States, a country that prides itself as the

international beacon of free expression.

 

" It strikes me as very odd, " said Douglas Kmiec, a constitutional law professor

at Pepperdine University and former constitutional legal counsel to former

Presidents Reagan and Bush. " I think the government has an uphill struggle to

justify this constitutionally. "

 

Several groups, led by the PEN American Center and including Arcade Publishing,

have filed suit in U.S. District Court in New York seeking to overturn the

regulations, which cover writers in Iran, Sudan, Cuba, North Korea and, until

recently, Iraq.

 

Violations carry severe reprisals -- publishing houses can be fined $1 million

and individual violators face up to 10 years in prison and a $250,000 fine.

 

" Historically, the United States has served as a megaphone for dissidents from

other countries, " said Ed Davis of New York, a lawyer leading the PEN legal

challenge. " Now we're not able to hear from dissidents. "

 

Yet more than dissident voices are affected.

 

The regulations already have led publishers to scrap plans for volumes on Cuban

architecture and birds, and publishers complain that the rules threaten the

intellectual breadth and independence of academic journals.

 

Shirin Ebadi, the 2003 Nobel Peace Prize winner, has joined the lawsuit, arguing

that the rules preclude American publishers from helping craft her memoirs of

surviving Iran's Islamic revolution and her efforts to defend human rights in

Iranian courts.

 

In a further wrinkle, even if publishers obtain a license for a book --

something they are loathe to do -- they believe the regulations bar them from

advertising it, forcing readers to find the dissident works on their own.

 

" It's absolutely against the First Amendment, " fumed Arcade editor Richard

Seaver, who hopes to publish an anthology of Iranian short stories. " We're not

going to ask permission (to publish). That reeks of censorship. And `censorship'

is a word that gets my hackles up very quickly. "

 

Officials from the U.S. Treasury Department, which oversees OFAC, declined

comment on the lawsuit, but spokeswoman Molly Millerwise described the sanctions

as " a very important part of our overall national security. "

 

" These are countries that pose serious threats to the United States, to our

economy and security and our well being around the globe, " Millerwise said,

adding that publishers can still bring dissident writers to American readers as

long as they first apply for a license.

 

" The licensing is a very important part of the sanctions policy because it

allows people to engage with these countries, " Millerwise said. " Anyone is free

to apply to OFAC for a license. "

 

Critics say they shouldn't have to.

 

" We have a long tradition of not accepting prior restraint, " said Wendy

Strothman of Boston, who hopes to serve as Ebadi's literary agent should the

regulations be struck down. " The notion of getting a license seems to me to be

completely counter to the spirit of the First Amendment. ... It's really, for

me, mostly about the notion of freedom of expression. "

 

The literature that might be lost to American readers is impossible to measure,

but in recent months the bestseller lists have been dominated by Azar Nafisi's

" Reading Lolita in Tehran, " a memoir she wrote in exile. And Marjane Satrapi's

graphic novel, " Persepolis: The Story of a Childhood, " written and published

after her family left Iran for France, has found an international audience.

 

Tom Miller, author of " Trading With the Enemy: A Yankee Travels Through Castro's

Cuba, " said the regulations not only " nullify the First Amendment " but would

dampen the hopes of censored Cuban writers.

 

" It would be all the more depressing, " said Miller, who travels to Cuba several

times a year under U.S. licenses for journalistic, academic or cultural

purposes. " There are two places Cubans get published outside of Cuba -- Spain

and the States. To cut that short list in half is devastating. In the U.S., it

means less artistic and literary infusion from overseas. "

 

Curt Goering, deputy executive director for the Amnesty International human

rights monitoring group, criticized the regulations as " a violation of some

fundamental human rights. "

 

Goering said international covenants recognize the right of people to receive

and distribute information regardless of political boundaries. " It's yet another

example of the hypocrisy of this administration on human rights, " Goering said,

adding that while the United States defends its role in Iraq as a defense of

liberty at home it is " blocking " publication of dissident voices.

 

Kmiec, who is not part of the legal challenge, said the First Amendment -- and

subsequent court rulings -- generally preclude the government from restricting

publications before they are made.

 

" It does allow for limitations where there are clear and present dangers and

compelling foreign policy or other interests that can be tangibly and

authentically demonstrated, " Kmiec said. " But short of that special application

and very rare circumstance, government censorship is properly off-limits. These

efforts to restrain in advance are almost sure to fail. "

 

The dispute centers on a Treasury Department interpretation this year of

regulations rooted in the 1917 " Trading With the Enemy Act, " which allows the

president to bar transactions with people or businesses in nations during times

of war or national emergency. A 1988 amendment by Rep. Howard Berman,

D-Calif.,relaxed the act to effectively give publishers an exemption while

maintaining restrictions on general trade.

 

In April, OFAC regulators amended an earlier interpretation to advise academic

publishers that they can make minor changes to works already published in

sanctioned countries and reissue them.

 

But the regulators said editors cannot provide broader services considered basic

to publishing, such as commissioning works, making " substantive " changes to

texts, or adding illustrations.

 

The regulations seem shaded by Joseph Heller's classic novel " Catch-22. "

 

American publishers are allowed to reissue, for example, Cuban communist

propaganda or officially approved books but not original works by writers whom

the Cuban government has stifled.

 

In a letter to Treasury officials this past spring, Berman described the

regulations as " patently absurd " and said they form a " narrow and misguided

interpretation of the law. "

 

" It is in our national interest to support the dissemination of American ideas

and values, especially in nations with oppressive regimes, " Berman said. " At the

same time, (the Berman amendment) is intended to ensure the right of American

citizens to have access to a wide range of information and satisfy their

curiosity about the world around them. "