“This settlement is an important victory for free speech at a moment when governments around the world are exploiting national security laws to suppress legitimate political discourse. The First Amendment protects the right of Americans to engage with people from other countries—to talk with them, hear from them, and engage them in discussion and debate,” said Anna Diakun, staff attorney at the Knight First Amendment Institute. “The government has no authority to dictate which voices and ideas Americans are permitted to hear.”

As part of the settlement, OFAC has issued a letter to the Foundation for Global Political Exchange making clear that including sanctioned individuals in political dialogues, whether in person or online, is not prohibited by U.S. sanctions. The settlement will also enable other organizations to foster political dialogue without fear of prosecution. 

The Foundation for Global Political Exchange promotes professional and academic enrichment through convenings in different countries in the Middle East and North Africa called “Exchanges.” Each Exchange involves a series of small-group, immersive dialogues that allow participants from around the world to engage with and question key decision-makers from across a country’s political spectrum, including figures who vigorously disagree with one another. The Foundation categorically condemns violence against civilians and recognizes that finding avenues toward sustainable peace requires people to engage even with those with whom they vehemently disagree. Since 2008, more than 1,500 people have attended Exchanges, including journalists, academics, students, NGO practitioners, and government officials from 51 different countries. 

In 2022, OFAC told the Foundation that it could not include in one of its Exchanges several individuals who had been designated under the agency’s sanctions regimes, or who were members of a designated group. The Foundation sued to challenge this decision, arguing that OFAC had exceeded its authority and violated the First Amendment by suppressing core political speech. It asked the court to declare that OFAC’s actions were unlawful and to bar the agency from blocking the Foundation’s speakers in the future.

“We’re pleased with this settlement, which will limit the government’s ability to use sanctions law to shut down vital political discussions,” said Nicholas Noe, director and co-founder of the Foundation for Global Political Exchange. “Free and open political dialogue is vital for achieving mutual understanding and for finding pathways to peace. Americans can’t possibly understand the world around them if the government gets to decide which foreign citizens they can speak with.”

Read today’s stipulation of dismissal here.

Read the letter from the government here.

Read more about the case here.

Lawyers on the case include Diakun, Alex Abdo, Jameel Jaffer, and Xiangnong Wang for the Knight First Amendment Institute, and Joshua Andresen for the Foundation for Global Political Exchange.

More information about the Foundation for Global Political Exchange is available here.

For more information, contact: Adriana Lamirande, adriana.lamirande@knightcolumbia.org 

“Preventing an American organization from including disfavored speakers in political dialogue is a dangerous overreach by the government with enormous consequences for the global exchange of ideas,” said Alex Abdo, litigation director of the Knight First Amendment Institute. “Americans have a right to engage with people and ideas from around the world, and the First Amendment protects their right to do so even when the government objects.”

The Foundation for Global Political Exchange promotes professional and academic enrichment through convenings in the Middle East and North Africa called “Exchanges.” Each Exchange involves a series of small-group, immersive dialogues that allows participants from around the world to engage with and question key decision-makers from across the country’s political spectrum. Since 2008, more than 1,500 people have attended Exchanges, including journalists, academics, students, NGO practitioners, and government officials from 51 different countries. 

The Foundation convened the 21st Beirut Exchange in January 2023, where 15 participants from around the world gathered to engage with about 35 prominent figures in Lebanon. In advance of that Exchange, the Foundation informed OFAC that it intended to include five Lebanese political figures—some of whom are members of Lebanon’s parliament—who are designated under a U.S. sanctions regime or members of a designated organization. Interpreting its authority broadly, OFAC prohibited the Foundation from including the speakers. 

“We invited these prominent political figures to the 2023 Beirut Exchange because they are vital to understanding Lebanon’s complicated political landscape and its role in global affairs,” said Nicholas Noe, director and co-founder of the Foundation for Global Political Exchange. “Hearing from key decision-makers across the ideological spectrum is critical to finding pathways toward a sustainable peace.”

Today’s complaint argues that OFAC’s decision to block the Foundation from including designated speakers in its Exchanges exceeds OFAC’s authority and violates the First Amendment by suppressing core political speech. If OFAC’s interpretation of its regulatory authority holds, it could have enormous consequences for public discourse. Under the agency’s interpretation, major media organizations would also be prohibited from publishing interviews with influential figures who are designated under U.S. sanctions law—which media organizations currently do routinely, particularly in their coverage of conflict regions. 

“The government can’t be allowed to dictate which voices Americans are permitted to hear from on issues of global politics,” said Anna Diakun, staff attorney at the Knight Institute. “The First Amendment was meant to keep this kind of authority out of the government’s hands.” 

The lawsuit asks the court to declare that OFAC’s actions are unlawful and to prohibit the agency from preventing the Foundation from hosting discussions with speakers of its choosing in the future.

Read today’s complaint here.

Lawyers on the case include Abdo, Diakun, Jameel Jaffer, Alexia Ramirez, and Xiangnong Wang for the Knight First Amendment Institute, and Joshua Andresen for the Foundation for Global Political Exchange.

For more information, contact: Lorraine Kenny, lorraine.kenny@knightcolumbia.org. 

Resisting Treasury’s Overreach  

In an earlier piece in Just Security, the Exchange Foundation shared the circumstances leading to its lawsuit. In brief, the Exchange Foundation, a nonprofit that organizes convenings—called “exchanges”—across the Middle East and North Africa, sought to organize discussions with several individuals subject to U.S. sanctions regulations in Beirut, Lebanon. After the organization reached out to OFAC about the exchange in April 2022, the agency replied in a letter that including those individuals would constitute the provision of a prohibited “service” to people and groups designated under U.S. sanctions regimes. The Exchange Foundation brought suit, arguing that OFAC’s determination exceeded the agency’s statutory and regulatory authority, and violated the First Amendment.

OFAC’s position, which was essentially that Americans do not have a right to engage with individuals abroad whom the government designates as off-limits, raised serious free speech concerns. It suggested that merely organizing conversations with sanctioned people could subject the Exchange Foundation, and groups like it, to civil or even criminal liability. It meant potentially cutting off political conversation with the tens of thousands of people and organizations subject to U.S. sanctions.

Those familiar with the caselaw in this area will know that the Supreme Court held in Holder v. Humanitarian Law Project that expressive activity that is protected in other contexts is sometimes not protected when it supports designated organizations. But even Humanitarian Law Project, which has been widely criticized, did not supply a basis for the position that OFAC took in its letter. Humanitarian Law Project involved an as-applied challenge to a statute that proscribes the knowing provision of “material support or resources to a foreign terrorist organization.” The plaintiffs wished to train groups the United States had designated as foreign terrorist organizations in non-violent dispute resolution, so that they could pursue their demands through lawful processes. The Supreme Court upheld the application of the law to the plaintiffs’ proposed activities, concluding that the First Amendment does not protect the provision of legal services and specialized training to terrorist groups, even though that support takes the form of speech and even though it directly advances only the groups’ lawful and non-violent activities.

Crucially, though, even Humanitarian Law Project never purported to permit the government to stifle an American organization’s ability to engage in or facilitate political discourse with individuals or groups the government disfavors. If endorsed by the courts, OFAC’s legal theory would have dramatically expanded the Treasury Department’s authority to police not just economic transactions, but the exchange of ideas.

Treasury Reverses Course

OFAC reversed course after we filed our complaint. As part of a settlement, it issued a new letter rescinding its prior decision to block the Exchange Foundation from engaging in political dialogue with sanctioned individuals, revoking its prior interpretation of its authority. In the letter, OFAC made clear that hosting sanctioned individuals at Exchanges “is not a service prohibited by U.S. sanctions and thus no authorization is necessary.” Importantly, the letter acknowledged that OFAC’s new position applies to events that are “hosted virtually online.” This clears up considerable uncertainty that emerged in 2020 after the online conferencing platform Zoom unilaterally canceled university-sponsored seminars involving Palestinian activist Leila Khaled, a member of a designated foreign terrorist organization, citing concerns that hosting the events might involve the provision of “material support” for terrorism.

Although not officially linked to our legal challenge, OFAC also released an FAQ in August—towards the tail end of our settlement negotiations—including language identical to what it states in the settlement letter. The FAQ explains in no uncertain terms that “OFAC does not sanction persons for their engagement in activities subject to U.S. constitutional protection, such as protected speech . . . ; nor do U.S. persons violate OFAC sanctions for engaging in such constitutionally protected activity.” It goes on to acknowledge clear statutory limits to the president’s authority to regulate “personal communication” and “information or informational materials.”

OFAC’s reversal is a victory for free speech that ensures Americans can continue to engage with people and ideas from around the world. The settlement helps secure protections for the political discourse that is vital to our democracy, and reinforces checks and balances designed to prevent government overreach. It is particularly important for groups like the Exchange Foundation, which work in countries with complex political dynamics that Americans often do not fully appreciate. The Exchange Foundation, and other groups working in these spaces, are committed to engaging with actors from across the political spectrum, including those the U.S. government would rather exclude. Mutual understanding and durable political solutions are only possible by engaging with all sides in a dispute.

A Warning for the Future

Although the settlement is cause for celebration, the circumstances that led to our lawsuit are a warning sign of the perils present when the government attempts to use national security laws to shut down vital political discourse. This was not the first time that Treasury has attempted to improperly use its sanctions authority to suppress speech it disfavors, and it won’t be the last.

Throughout the Cold War, presidents relied on various sanctions authorities to cut off Americans’ access to books, newspapers, and other materials originating from abroad. These overreaches prompted Congress to repeatedly emphasize important limits to the president’s sanctions powers. In enacting the International Emergency Economic Powers Act (IEEPA), a 1977 law that forms the basis of much of the Treasury Department’s modern-day sanctions authority, Congress included a number of exceptions designed to protect free speech. It later amended IEEPA twice—first in 1988 through the so-called “Berman Amendment” and again in 1994—to further bolster those exceptions to protect the exchange of information and ideas.

These limits to the president’s sanctions authorities make clear what should be plain: The restrictions authorized by IEEPA are about blocking economic transactions, not the exchange of ideas. The law’s important protections for communications and the dissemination of information, and Congress’ plain directive, serve as a clear reminder that the executive branch must not use its sanctions authority to suppress speech.

We should be especially wary of executive branch overreach given recent and alarming examples of governments around the world using national security laws to suppress political dissent. Just a few weeks ago, police in the UK arrested an Israeli academic on charges of supporting terrorism based on his pro-Palestinian advocacy. In France, a court sentenced a pro-Palestinian activist to prison for social media posts that purportedly advocated terrorism. In the United States, we should be concerned with how a second Trump administration might seek to abuse existing laws and regulations—and new ones—to shut down political discourse and debate in this country. This could include bills like H.R. 9495, which recently passed the House, that would grant the Secretary of the Treasury the sweeping, unilateral power to strip American non-profit organizations of their tax-exempt status by designating them as “terrorist supporting”; although it may not pass the Senate this session, it would likely reappear after the new year. The bill was crafted in response to claims that U.S.-based non-profits were providing “support, encouragement, and potential financing” to Hamas, though the extraordinary authority it grants could be used to suppress the speech of a broad range of disfavored groups, and could chill the speech of many more.

If the Biden Treasury Department is willing to push past the limits of its regulatory authority, imagine how these powers might be exploited and weaponized by an administration emboldened by broader authorities. The next big fight is surely just around the corner.