Wednesday, December 08, 2004, 12:00 a.m. Pacific
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By Scott Martelle
Los Angeles Times
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.
"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."
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 best-seller 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."
Rights group critical
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."
U.S. 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."
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