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Louisiana State Univ.

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Tuesday, September 18, 2007

Second Circuit Upholds Lower Court Ruling Against American Citizen Who Violated Order Not to Travel to Iraq

The Second Circuit has upheld a district court order against a plaintiff/appellant, Judith Karpova, who visited Iraq in 2003 as "an ordained minister to bear witness to the effect on Iraq's people of economic sanctions, as a professional writer and journalist sending letters or reports to the Jersey Journal, a daily newspaper in Jersey City, New Jersey, and as a human shield to prevent destruction of civilian infrastructure in the event of renewed hostilities" even though several executive orders and Treasury Department regulations stated quite clearly that these activities were forbidden. In response, she was fined $6700. She sued to set aside the fine, claiming that it was in violation of the APA and the First and Fifth Amendments and the Iraqi Sanctions Act.

The court rejected all of her arguments. With regard to the claim that Ms. Karpova was a journalist, the Second Circuit ruled that "

The case is Karpova v. Snow, U.S.C.A. 2d Cir. 2007, 06-0104-cv.

Similarly, even if plaintiff is correct that some of the transactions she engaged in in Iraq related to journalistic activities and thus were exempted from sanction by § 575.207, remand on that basis would be futile. By way of background, § 575.207 provides that transactions "[r]elating to journalistic activity by persons regularly employed in such capacity by a newsgathering organization" are not sanctionable, and § 575.416(b)(1) clarifies that certain freelance journalists are covered by § 575.207's exemption. Karpova's argument is that her solicitation of funds, her travel to Iraq, and her purchase of food all related to her freelance journalistic activity, and thus were not sanctionable under the  regulations. Unfortunately, the Agency did not provide much explanation on this issue; it merely noted in the Prepenalty Notice that Karpova acted as a freelance journalist while in Iraq, but failed to address in its final decision whether she qualified as a journalist under § 575.416 and whether these transactions were covered by this exception. Yet, plaintiff overlooks § 575.416(c), which notes that "[a]uthorized travel transactions are limited to those incident to travel for the purpose of collecting and disseminating information for a recognized newsgathering organization, and do not include travel transactions related to any other activity in Iraq" (emphasis added). Karpova admits that among her activities within Iraq were excursions to "defend Iraqi civilian infrastructure from bombing." Such activity clearly would not fall within the journalistic exception, and thus we are confident the Agency would reach the same conclusion even were we to determine that some of Karpova's activities in Iraq were exempted by the journalistic exception."

With regard to the Free Speech claim, the court said, "Under the First Amendment, a restriction against traveling to a specified country is "an inhibition of action," not speech.... As the Zemel Court explained, many restrictions on action could "be clothed by ingenious argument in the garb of decreased data flow.".... Yet such arguments are to no avail since the First Amendment guarantees a citizen the right to speak and publish, but does not guarantee an unrestrained right to gather information....Karpova was fined because of her actions in violating the travel regulations, not for her speech.  Consequently, her First Amendment rights were not violated."

Read the entire opinion here.

http://lawprofessors.typepad.com/media_law_prof_blog/2007/09/second-circuit-.html

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