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The Executive Officer’s Column

Academic Freedom and Publishing in Interesting Times

One consequence of the September 11, 2001, terrorist attacks for our open democracy is the necessity for the American public to engage in constant and thoughtful vigilance to protect against needless compromise of existing freedoms through legislation or the expansion of existing regulation. The protection of some freedoms must undoubtedly be balanced against inevitable modifications of the degree of regulation over some business-as-usual routines invoked to attenuate risks of future attacks. Watchfulness, however, is especially important because some changes are not highly visible.

One of these routines, scholarly publishing, has already been affected by voluntary constraints in some domains of scientific publishing (e.g., biotechnology). It now faces new challenges from involuntary constraints coming from a place many of us had never heard of—the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC). One of OFAC’s jobs is to monitor and enforce federal regulations regarding trade embargoes with nations the U.S. government holds in disfavor. In September 2003, OFAC reinterpreted the scope of longstanding federal policies regarding trade embargoes imposed against certain disfavored nations to cover the editing (and possibly peer review) of articles published in scholarly journals. What this means is that OFAC has ruled that editors and publishers of scholarly journals can be sanctioned by up to 10 years in prison and $500,000 in fines if they (i.e., we) publish manuscripts copyedited (and peer reviewed) by U.S. organizations but originating from authors in the Balkans, Burma, Zimbabwe, Cuba, Iran, Iraq, Libya, Liberia, North Korea, or Sudan. In short, such publication is now regarded as “trading with the enemy.”

The effect of OFAC’s reinterpretation is potentially dangerous to sustaining academic freedom both in the United States and abroad. The progress of scientific work and the envied American tradition of free speech are placed in jeopardy by this action at a time when many scholars, educators, and scientists believe that their role at home and in the international exchange of ideas is increasingly important as the world experiences global transformation. Indeed, as described below, the U.S. Congress exempted “informational materials” from trade embargoes precisely to ensure such exchange of knowledge and ideas would continue unimpeded by government restriction despite difficult times.

Some historical background may help. Passed in 1977 by the U.S. Congress, the International Emergency Economic Power Act (IEEPA) prescribed what actions, including trade embargoes, the U.S. President could initiate after declaring a peacetime national emergency relating to foreign threats to our nation’s security, foreign policy, or economy. Exemptions and subsequent amendments (e.g., by Rep. Howard Berman of California) were designed and implemented by Congress specifically to protect the flow of information and to ensure scholarship by nationals of other countries could be published by U.S. scholarly journals despite trade embargoes and other protective actions deemed necessary by the President. As Congressman Berman said in a March 3 letter to the Director of OFAC, “the free flow of information is an essential prerequisite for the advancement of human knowledge. In the realm of science, a robust peer review process ... helps ensure the integrity of scientific research. Publishing the results of such research in scholarly journals is an integral part of the scientific process.”

Such exemptions permitted scientific and scholarly publishers to continue to fulfill their role of knowledge dissemination without compromising academic freedom, although three presidents between 1980 and 1997 invoked the IEEPA-based authority to embargo certain trade transactions involving Iran. (Prior to IEEPA, the World-War-I-era TWEA [Trading with the Enemy Act] authorized the President to restrict or prohibit importation or exportation involving specific countries during war).

Whether the current situation initiated by OFAC’s 2003 reinterpretation of the “information materials” exemption will be resolved without litigation remains unclear. OFAC has recently indicated that it might provide the Institute of Electrical and Electronics Engineers (IEEE), which extensively publishes the research of Iranian and other non-U.S. researchers, with a federal license permitting the IEEE to publish educational materials/journal articles from the embargoed countries. OFAC suggests that other publishers (such as the ASA) could reference such a “general license” as federal authorization for continuing the editorial services and peer review processes that were at issue in OFAC’s September 2003 ruling on existing laws and regulations. (See the March 19 Science magazine, p. 1742.)

However, any form of governmental licensing authority over publishing activities is what most publishers (and, apparently, Rep. Berman) believe is precisely what Congress denied OFAC through the Berman amendment and the Founders and citizens of the United States through the First Amendment. We are, therefore, still some distance from a resolution of this very important issue.

Last month, I communicated with all ASA journal and newsletter editors about this situation and requested that they inform the Executive Office if they received such a manuscript or had one in the review process. The Executive Office is working closely with legal counsel and is engaged with ASA’s leadership and other professional societies and publishers to respond to this challenge. ASA President Michael Burawoy, President-elect Troy Duster, Publications Committee Chair Carol Heimer, and I strongly support editorial independence and seek with all means at our disposal to protect it and to protect academic freedom. The purpose of my request to our editors was to ensure we have all the information we need to obtain legal advice about strategies we can use ourselves, and with other publishers, to maintain the vitality of free scholarship and the independence of scholarly publishing. We will keep the ASA membership apprised of new developments and our progress. [As Footnotes goes to press, breaking news reports suggest OFAC may have reversed itself again; ASA will keep editors and members informed as we review OFAC statements.]

Sally T. Hillsman, Executive Officer