This Note argues that, given the ambiguous language and legislative history of the statute, courts should defer to OFAC's decisions concerning the definition of other “informational materials” in the Berman Amendment. Part I describes the varying levels of protection offered by the First Amendment and the power of the executive branch to block the import or export of informational materials pursuant to TWEA. Part II sets forth the federal courts' conflicting views with respect to the scope of materials exempted from regulation. Part III argues that courts should defer to OFAC decisions regarding the materials exempted from presidential regulation because the language and legislative history of the Berman Amendment fail to specify clearly the informational materials that are exempt from regulation and because these decisions do not violate the independent constraints imposed by the First Amendment. This Note concludes that U.S. courts should refrain under the doctrine of separation of powers from legislating the meaning of “other informational materials” in this foreign affairs area where OFAC has clarified the meaning of an ambiguous statutory phrase.
Laura A. Michalec,
Trade with Cuba Under the Trading with the Enemy Act: A Free Flow of Ideas and Information?,
15 Fordham Int'l L.J. 808
Available at: http://ir.lawnet.fordham.edu/ilj/vol15/iss3/9