The Defendant Is Charged With Good Editing

by Peter Givler, Executive Director, AAUP
This article originally appeared in the Chronicle Review on May 21, 2004; reprinted with permission.

A WARNING: Publishing may still be hazardous to your health. A lot of angry ink has been spilled over the U.S. Treasury Department's bizarre ruling last fall that a publisher who corrected the spelling in a manuscript from Iran could be guilty of trading with the enemy and subject to serious criminal penalties—up to $500,000 in fines and 10 years in prison. Publishers and writers were outraged. Newspaper editorials denounced the ruling. Meetings were held, letters written, lawsuits discussed.

Now the department appears to have backed off. In a further ruling, announced last month, it said, based on submissions from one scholarly publisher—the Institute of Electrical and Electronics Engineers—that the institute may copy-edit manuscripts from Iran after all. Officials have said that the ruling should apply to other publishers who follow the same editing procedures.

A victory for publishing and the free flow of ideas? It would be pretty to think so, but I'm afraid not. Because of the legal complexities involved, too few observers—including most of the news media—have really understood what continues to be at stake.

The point of contention has to do with how editing a manuscript adds to its value. The government's assumption of authority to regulate what publishers may do with manuscripts from Iran stems from the role of the Office of Foreign Assets Control, a section of the Treasury Department charged with administering economic sanctions imposed on countries whose actions the president judges to be a threat to national security. The president's power to impose such sanctions is defined in the International Emergency Economic Powers Act of 1977, itself a cold-war extension of the World War I Trading With the Enemy Act.

Debate over the 1977 act included a lively dispute about whether trade embargoes should apply to activities normally protected by the First Amendment. Was it really in the national interest to prevent the flow of information? Most participants thought not, but the act didn't speak to directly to the issue. As a result sanctions were imposed, with a series of exceptions declared in practice. One of those was for news gathering, with some limitations.

In 1988, in what has come to be known as the Berman Amendment (named after the bill's sponsor, Rep. Howard Berman, a California Democrat), transactions in "information and informational materials" were declared exempt from the trade sanctions. In 1994, seeking to address the question of new communications media like videotapes and CD's, Congress passed the Free Trade in Ideas Amendment, stipulating that the exemption for informational materials applied to importation and exportation in all formats and media.

The language is important. As amended, the Emergency Economic Powers Act says, "The authority granted to the president does not include the power to regulate or prohibit the importation from any country, or the exportation to any country, whether commercial or otherwise, regardless of format or medium of transmission, of any information or informational materials, including but not limited to, publications, films, posters. …" Moreover, the conference report on the 1994 bill, indicative of legislative intent, says flatly that the 1988 Berman Amendment established "that no embargo may prohibit or restrict directly or indirectly the import or export of information that is protected under the First Amendment to the U.S. Constitution."

Can't get much plainer than that—or so you'd think.

In 1989, the Office of Foreign Assets Control issued this curious gloss on the meaning of the 1988 Berman Amendment: Acknowledging that transactions in information and informational materials were exempt from regulation, the office ruled that it did "not exempt from regulation or authorize transactions related to information and informational materials not fully created and in existence at the date of the transactions, or to the substantive or artistic alteration or enhancement of informational materials."(The emphasis is mine.)

In other words, according to the Treasury Department, the Berman Amendment only applies to works that already exist, like published books or journals. Authority over works still in manuscript belongs to the Office of Foreign Assets Control.

What justifies such a wacky distinction? It isn't in the law. It isn't in the legislative history. Yet it is the basis of OFAC's claim that it has the authority to regulate the publishing of manuscripts originating not just in Iran, but in any country against which sanctions have been imposed under the Emergency Economic Powers Act—countries including Cuba and Sudan as well as Iran.

The April ruling explicitly reaffirms that claim: OFAC's authority extends over anything that constitutes "substantive or artistic alteration or enhancement" of a manuscript. Anything that may so enhance the manuscript can only be done, if at all, only ßunder license issued by OFAC. No license is required, however, as long as the editing procedures fit within the office's understanding of what those activities comprise.

What does the office understand is acceptable?

The April letter sent the engineering society lists eight allowable activities:

"Labeling units of measurements with standard abbreviations."
"Correcting grammar and spelling to conform to standard American English."
"Changing the size of type or the weight of lines in illustrations so that the diagrams remain legible when reduced in size for publication."
"Labeling illustration captions and formatting references to conform to the style manual" of the publisher.
"Sizing and positioning illustrations to fit on the page appropriately and in proper proximity to references in the text."
"Formatting mathematical equations to fit on the page appropriately and to avoid breakage between two lines in a way that is unclear."
"Ensuring that the author has supplied a biography and a photo."
"Adding page folios with publication titles and page numbers."

That's the complete list.

So if none of those activities are substantive or artistic alterations, what are? The only thing OFAC has said is that collaboration between a U.S. national and a writer in a country under sanctions that resulted in "co-authorship or the equivalent thereof" would be forbidden. Co-authorship means something quite specific in copyright law and publishing contracts. But what does "or its equivalent" mean? Would it include an editor who worked closely with an author on improving the logic and organization of a manuscript? Who edited for style that went beyond correcting spelling and punctuation? Clearly, OFAC intends that a line be drawn somewhere, but where? The only way to find out is to ask the office—and that's where the serious problems start.

OFAC's blessing of the procedures listed in its April ruling is based on a premise that every publisher knows to be completely false: that such procedures don't constitute substantive or artistic enhancements. That they don't add value to the manuscript. Nobody who's ever spent time trying to decipher poorly edited text or illustrations could say that good editing isn't a significant enhancement. Yet, if that's the argument the office is willing to accept, what are publishers to say? That they don't improve what they publish?

Still, one might argue for a pragmatic approach, swallowing the absurdity and applying for a license anyway. It would be a substantial inconvenience, to be sure— it took the engineers more than a year to get their ruling—but what's the harm if ultimately the job gets done?

Unfortunately, applying for a license means acknowledging that the Office of Foreign Assets Control has the authority to make rules about publishing in the first place—an authority that Congress, invoking the First Amendment, has already said the office doesn't possess. That brings us to the central issue: the First Amendment and the public interest in the free flow of information that make the office's assertion of licensing authority repugnant and its intrusion into publishing perverse.

However the office justifies what it is doing, the effect of its attempt to govern the publishing of manuscripts from embargoed countries only limits even further our already limited ability to hear voices from those countries about which we know least. That is an offense to one of the core freedoms upon which the United States was founded, and to one of the core principles of publishing.

One of the projects—and there are many—currently threatened is a collection of political writings by an Iranian dissident. Getting the manuscript ready to publish would require the publisher to use processes that go significantly beyond those approved in the April ruling. The book could never be published in Iran because of government censorship there; now it can't be published here unless its American publisher (with whose lawyers I have been consulting) risking substantial fines and imprisonment, or asking permission through an unconstitutional licensing scheme— one which, evidence suggests, would probably not be granted.

If the work can't be published there or here, what is the functional difference between Iran's censorship and ours? It isn't just the people of Iran and other countries under embargo who are harmed. So are we—and we're doing it to ourselves.