Volume 83, Number 6

December 2008

An Unfree Trade in Ideas: How OFAC’s Regulations Restrain First Amendment Rights

Tracy J. Chin

The Office of Foreign Assets Control (OFAC) is charged with administering the United States’ trade sanctions programs. These programs conflict with the First Amendment when they prevent publishers and editors from working with authors from sanctioned countries. This Note highlights the shortcomings of OFAC’s pub- lishing regulations. It focuses on the agency’s exclusion of foreign government officials (“the government exception”) from the First Amendment protections given to those who engage in publishing-related activities. The Note argues that the government exception amounts to an improper prior restraint under the First Amendment and creates the potential for censorship. The Note then challenges and critiques national security– and economic-based justifications for the government exception. Lastly, it proposes regulatory and policy-based reforms to ensure that sanctions programs can function without sacrificing the rights and protections to which publishers, authors, and editors are entitled under the First Amendment.