Barring Speakers Under U.S. Sanctions Puts Ideas Off-Limits, Say Free Speech Advocates

A lawsuit filed Wednesday says the U.S. government violated the First Amendment when it prevented a U.S.-based organization from hosting people sanctioned by the U.S. as speakers at a conference earlier this year. The suit, if successful, could have far-reaching implications for placing federal limits on freedom of speech when sanctioned or otherwise designated people or groups are involved.

The complaint, filed by Columbia University’s Knight First Amendment Institute, argues that the decision made by the Office of Foreign Assets Control could have consequences for public discourse, including whether news outlets could publish interviews with individuals designated under U.S. sanctions law.

For the lawyers bringing the suit, the current curtailment of speech based on sanctions amounts to the policing of thought. 

“The question at the core of the case is what control the U.S. government has over the American mind and whether it can effectively insulate Americans from ideas and people who it decides are off-limits,” said Alex Abdo, litigation director of the Knight Institute. “That is an extraordinarily dangerous authority.”

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In January, the Foundation for Global Political Exchange, a U.S. nonprofit that organizes small-group discussions across the political spectrum in the Middle East, held an event in Beirut aimed at fostering political dialogue about Lebanon.

The Foundation sought to include five influential political figures in Lebanon who were either sanctioned by the U.S. government or were members of a designated organization. Two of the potential speakers were members of the Lebanese Parliament, one was a senior representative of the sanctioned Palestinian militant group Hamas, and two others were members of Hezbollah, which the U.S. government considers a terrorist organization but remains a major political party within Lebanon.

“The public gets to decide for itself which ideas to credit and which ones to reject. That is what the First Amendment is supposed to protect.”

Out of prudence, the Foundation informed OFAC, the agency that regulates sanctions, that some of the participants were on the sanctions list or affiliated with sanctioned groups. The agency was categorical in its response: Any event held by Americans with designated individuals was prohibited and risked civil or criminal penalties. OFAC claimed that inviting any of the five people — even those who were members of sanctioned organizations but not themselves listed as individuals — would violate the law by giving them “a platform for them to speak” that would provide a “service,” according to the lawsuit. (OFAC did not immediately respond to a request for comment.)

The lawsuit argues that OFAC has no legal authority to prevent Americans from engaging in conversation with people on the sanctions list. The Foundation’s event was specifically protected by legal and regulatory exemptions on the exchange of information and ideas, it claims.

“OFAC is assuming the authority to control whom Americans get to hear from and by extension what views Americans hold,” Anna Diakun, a staff attorney at the Knight Institute, told The Intercept. “But the public gets to decide for itself which ideas to credit and which ones to reject. That is what the First Amendment is supposed to protect.”

OFAC is part of the U.S. Treasury Department and administers and regulates sanctions against individuals and organizations abroad. U.S. sanctions often shift based on political conditions. Given the Foundation’s mission to promote political dialogue, particularly in conflict-stricken regions, the decision to restrict the event in Beirut could be at odds with U.S. political goals, the suit argues.

“While the government sometimes has legitimate interests in imposing sanctions on groups that are hostile to the United States or engaged in human rights abuses,” the complaint states, “prohibiting the Foundation from engaging in political dialogue with designated individuals undermines rather than serves those interests.”

On its face, the case deals with the specific situation of an American organization hosting people on the U.S. sanctions list at events. But the lawsuit argues that OFAC’s decision could be applied to political speech more broadly, making it effectively illegal for Americans to speak with people out of favor with the U.S. government, including restricting journalists from publishing interviews with sanctioned individuals, which is often necessary when reporting on conflicts abroad.

“OFAC legal theory would allow it to criminalize journalists who want to engage with ideas and individuals that the U.S. government disfavors,” Abdo said. “That is a tool of autocracy, not democracy where people get to decide which ideas to engage with.”