OFAC Signals Policy Change on Holding Conferences with Sanctioned Speakers

Marking what appears to be a reversal of previous policy, the Office of Foreign Assets Control (OFAC) determined that US persons can, subject to certain limitations, include sanctioned persons as speakers at overseas conferences without specific authorization. In a recent letter accompanying a stipulated dismissal, OFAC clarified that including sanctioned persons as speakers at conferences does not by itself constitute the provision of a service prohibited by US sanctions.

After OFAC initially denied the nonprofit Foundation for Global Political Exchange, Inc.’s (GPE’s) application for a specific license to feature five speakers who are subject to blocking sanctions at its 2022 conference in Beirut, Lebanon, GPE filed a lawsuit alleging that this decision exceeded OFAC’s authority and violated the First Amendment. In a settlement reached on November 12, 2024, OFAC reversed its initial denial of GPE’s license request, deciding that including sanctioned speakers was not by itself the provision of services and therefore would not violate US sanctions.

OFAC clarified that it does not seek to prohibit US nonprofits from including sanctioned individuals at conferences for the purpose of facilitating political dialogue. However, OFAC urged organizations to be cautious as hosting sanctioned individuals at conferences could still harm US national security or otherwise violate US sanctions. In particular, OFAC’s determination emphasizes that the permissibility hinged in part on the fact that no payments were made, nor other services provided (i.e., food, lodging), to the sanctioned individuals.  

SHARING INFORMATION IN THE CURRENT SANCTIONS REGIME

The authority granted to the president of the United States under the International Emergency Economic Powers Act (IEEPA) does not authorize the regulation or prohibition of most types of communication that do not involve the transfer of anything of value (50 USC § 1702(b)(1)). The Berman Amendment, added to IEEPA in 1988, stipulates that the president cannot regulate or ban the import or export of “informational materials” to or from adversarial nations or individuals.

The Free Trade in Ideas Act, passed by the US Congress in 1994, expanded the Berman Amendment to also include newer and forthcoming “informational materials” such as television broadcasts and various methods of personal communication. In TikTok Inc. v. Trump, the DC District Court confirmed that IEEPA’s limitation prohibiting the president from regulating “personal communication” extends to other media. At the same time, under OFAC sanctions programs, US persons are prohibited from providing or receiving funds, goods, or services from blocked persons.  

Consistent with IEEPA’s limitation, certain sanctions programs, including those imposed on Iran, Syria, and Cuba, already contain general licenses authorizing the exportation of services related to conferences in the United States or third countries. For example, part of the general license contained in the Iranian Transactions and Sanctions Regulations authorizes the provision of services to persons ordinarily resident in Iran where the “services” directly relate to participating in a public conference, performance, exhibition, or similar event so long as such services are consistent with that purpose.

These general licenses do not authorize dealings with specially designated nationals (SDNs), instead merely addressing dealings with residents (or nationals) of such countries. However, these licenses would go farther than what OFAC permits in GPE’s case as they authorize the provision of noninformational services such as housing, food, and other benefits associated with public conferences.

This indicates that in certain contexts OFAC has been willing to permit activities beyond those that might be specifically encompassed within First Amendment activities. In the case of GPE’s request, OFAC appears to have initially taken the position that attendance by these SDNs would have violated the relevant sanctions regimes and the sanctions programs under which the speakers were sanctioned do not contain general licenses authorizing transactions related to conferences. Yet, “upon further review,” OFAC decided the mere attendance of SDNs would not be prohibited. Since the result is specific to the request made by GPE, the question of what types of activities by SDNs at conferences might be permitted remains unclear.  

THE FOUNDATION FOR GLOBAL POLITICAL EXCHANGE V. DEPARTMENT OF THE TREASURY

GPE originally intended to hold the 21st Beirut Exchange Summer 2022 Conference (the Beirut Exchange) as part of its mission to organize small-group conferences where participants can engage with intellectuals, activists, and politicians from diverse backgrounds in discussions focused on the geopolitical dynamics of specific countries and regions. Among the speakers GPE planned to include in its conference were individuals blocked under the Global Terrorism Sanctions Regulations (GTSR), Global Magnitsky Sanctions Regulations (GMSR), the Lebanon Sanctions Regulations (LSR), and two leaders of the group Hezbollah, a Specially Designated Global Terrorist (SDGT) organization—although these leaders were not specifically identified as blocked persons.

These sanctions programs differ from one another in their specifics, but they all prohibit the provision of services to persons sanctioned thereunder. In denying GPE’s license application, initially submitted on April 25, 2022, OFAC ultimately concluded that providing a platform for the sanctioned individuals to speak was considered a service in violation of the GTSR, GMSR, and LSR.

More than a year after OFAC’s denial of GPE’s license application, GPE filed a lawsuit in December 2023 challenging OFAC’s decision, arguing that OFAC lacked authority to prohibit GPE from including sanctioned speakers under both IEEPA and the First Amendment.

Almost a year after GPE filed its action, OFAC “revoked” its denial of GPE’s license application in a letter dated November 8, 2024 and stated that a license was not necessary based on the following four critical aspects of GPE’s request:

• GPE did not intend to engage in any financial transaction with or for the benefit of any sanctioned persons, either directly or indirectly.
• GPE did not intend to provide any transportation, lodging, good, or other item of value to any of the sanctioned persons in connection with the Beirut Exchange, including honorariums, which GPE normally does provide to speakers at its conferences.
• GPE did not intend to act on behalf of any of the blocked persons, either directly or indirectly. Rather, GPE organizes its conferences, including the Beirut Exchange, on its own initiative with the stated goal of allowing participants to better understand the viewpoints and actors shaping pressing regional political issues.
• GPE did not plan to provide specialized training or assistance to the sanctioned persons, nor would the sanctioned individuals have given or received specialized training or assistance to other attendees of the Beirut Exchange.

OFAC conceded that, based on these specific circumstances of this case, including sanctioned persons as speakers at the Beirut Exchange did not amount to a violation of US sanctions regulations, and thus no OFAC authorization was necessary.

WHAT DOES THIS POLICY CHANGE MEAN FOR INTERACTING WITH SANCTIONED INDIVIDUALS?

In its brief letter denying GPE’s license application, OFAC initially stated that providing the sanctioned speakers with an audience constitutes a service and therefore violated OFAC’s regulations, even though GPE claimed it did not plan to provide the speakers with any funds, goods, or training. OFAC provided little additional reasoning for this decision other than that “it would be inconsistent with current licensing policy to issue a specific license authorizing GPE to include the Blocked Speakers in the [Beirut Exchange].”

This is not the first time OFAC’s sanctions programs have faced potential limitation by the First Amendment. For example, in 2020, US Senators Cruz, Cotton, Blackburn, and Rubio sent a letter to Twitter claiming that hosting Iran’s supreme leader on the website violated US sanctions laws. Twitter responded that hosting the supreme leader was exempted by OFAC through the Berman Amendment and other applicable general licenses. When Elon Musk purchased Twitter in 2022, several members of Congress again urged Twitter to take down pages associated with the Islamic Republic of Iran’s government.

By reversing its stance in the GPE case, and by issuing the letter as part of the public record in the court proceedings, OFAC appears content to publicly clarify and refine its position on this issue: allowing sanctioned individuals to speak at events organized by US citizens is not a service so long as no financial transactions or other exchanges of benefits take place. OFAC acknowledged in its November 8 letter the importance of protecting Americans’ First Amendment rights but warned US citizens to remain vigilant against the potential for sanctioned individuals to use conference platforms like those provided by GPE for illicit activity (which would or could violate the sanctions regulations).

Key Takeaways

• While OFAC’s determination is based on the specific circumstances of this case, the decision provides insight into the limited circumstances in which US persons can legally interact with sanctioned individuals. For example, while including sanctioned speakers or attendees at a conference might be permitted, it is not clear how OFAC would perceive associated elements such as including speakers in networking events or taking additional steps to promote their appearance.
• This decision is particularly important for nonprofits, universities, journalists, or other US persons who may engage with sanctioned individuals. In these cases, US persons must exercise caution and conduct appropriate due diligence to ensure that there are no separate violations of US sanctions. For example, when interacting with sanctioned individuals, US persons must be careful to not relay or receive technical information or provide them with a service of any kind. OFAC confirms that even nominal covering of costs such as “lodging” remain problematic.
• The decision marks a rare instance in which an activity is not included in the definition of a service and could open the door for further discussion or litigation on the First Amendment limitations on US sanctions law.
• Although the case asserted First Amendment implications, OFAC does not appear to accept—nor is it clear that a court would agree—that an overseas conference is in fact subject to any First Amendment protections.

Legal practice assistant Charlie Biggs assisted with this LawFlash.