Does U.S. Sanctions Law Prohibit Providing a Speech Platform to Sanctioned Persons?

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Does hosting designated members of Hezbollah or other Specially Designated Global Terrorist organizations at conferences constitute a violation of U.S. sanctions laws? The U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) initially thought so, but recently changed course, settling a case brought by the Knight First Amendment Institute at Columbia University and clarifying that providing platforms to designated persons for First Amendment speech is not on its own a U.S. sanctions violation, provided no financial transaction or other exchange of benefits takes place.

In 2022, the Foundation for Global Political Exchange (the “Foundation”) intended to hold the 21st Beirut Exchange Summer 2022 Conference (the “Conference”) to bring together a diverse group of leading scholars, politicians, activists, journalists and NGO practitioners representing a range of different points of view on Lebanon to discuss geopolitical developments of Lebanon. The Foundation planned to invite individuals blocked under U.S. sanctions laws, including blocked leaders of Hezbollah, a Specially Designated Global Terrorist organization.

Prior to the Conference, the Foundation sent a letter to OFAC requesting guidance as to whether including designated and non-designated members of Hezbollah as speakers in the Conference constituted a violation of U.S. sanctions laws. OFAC replied that the provision of a platform for Hezbollah members to speak would be a “prohibited service” in violation of the Global Terrorism Sanctions Regulations, the Global Magnitsky Sanctions Regulations and the Lebanon Sanctions Regulations. On this basis, OFAC denied the specific license application.

In 2023, the Knight First Amendment Institute at Columbia University filed a lawsuit on behalf of the Foundation challenging OFAC’s denial. In Foundation for Global Political Exchange v. Department of the Treasury, the Foundation alleged that OFAC’s decision constituted a violation of the First Amendment and that OFAC lacked authority under the International Emergency Economic Powers Act to prohibit the Foundation from hosting sanctioned speakers. In a settlement reached on 12 November 2024, OFAC reversed its initial denial of the Foundation’s license request and indicated that including sanctioned speakers was not, on its own and absent a financial transaction or other exchange of benefits, a provision of “services” prohibited by U.S. sanctions laws. OFAC conceded that “including sanctioned persons as speakers at the Beirut Exchange, including actions ordinarily incident to facilitating their participation as speakers, under the circumstances you have described, is not a service prohibited by U.S. sanctions and thus no authorization is necessary.” Following the settlement, the parties dismissed the case.

Nicholas Noe, a director of the Foundation, welcomed the settlement, which he said limited the government’s ability to shut down important political discussions. “Free and open political dialogue is essential for achieving mutual understanding and for finding pathways to peace,” he wrote, adding that “Americans can’t possibly understand the world around them if the government gets to decide which foreign citizens they can speak with.”

The case, which seeks to strike a balance between freedom of expression and national security, will have an important impact for social media companies that offer platforms to persons designated under U.S. sanctions laws. U.S. courts have in recent years adjudicated a range of complex questions relating to the liability of social media companies for the speech of their users and the limitation of such liability under Section 230 of the U.S. Communications Decency Act.

Companies have wrestled with questions of whether hosting accounts of designated persons constitutes a violation of U.S. sanctions laws. In 2020, a group of U.S. senators including Ted Cruz, Marsha Blackburn, Tom Cotton and Marco Rubio demanded that Twitter remove the accounts registered to Iran’s Supreme Leader, Ali Khamanei, and Foreign Minister, Javad Zarif, who were designated under U.S. sanctions. The senators cited Executive Order 13876, pursuant to which President Trump designated Khamanei and authorized the Secretary of the Treasury to designate other leaders supporting Khamanei, and argued that the provision of a social networking platform to any person whose property and interests in property are blocked pursuant to any part of 31 C.F.R. chapter V, which includes a range of Iran sanctions programs, is prohibited. Declining to take down the accounts, Twitter maintained that the Berman Amendment to the 1988 Omnibus Trade and Competitiveness Act, which seeks to promote the free exchange of ideas across borders, limits the President’s authority to regulate information materials protected by the First Amendment, including tweets by Khamanei or Zarif.

Other social media companies have trod more cautiously. After Iranian General Qassem Soleimani was killed in a U.S. drone strike, Iranian journalists and activists who praised Soleimani had their Instagram accounts shut down. Instagram stated that, in removing posts, it was complying with U.S. sanctions laws, which designated the Islamic Revolutionary Guard Corps as a foreign terrorist organization. A Facebook spokesperson stated that the company “operate[s] under US sanctions laws, including those related to the US government’s designation of the IRGC and its leadership.” Similarly, in 2020, Zoom cancelled an academic panel organized by San Francisco State University that was to include Leila Khaled, who in 1969 hijacked an airplane in support of the Popular Front for the Liberation of Palestine. Zoom refused to allow the university to use its platform following a letter from the Lawfare Project arguing that the platform “would be violating federal anti-terrorism laws by providing services to an event that featured Leila Khaled.”

In some cases, providing a platform for the speech of designated persons can also expose social media companies to liability for crimes that arise as a result of speech that incites acts of violence. Jane Doe et al. v. Meta Platforms, Inc. (f/k/a Facebook, Inc.) is one such case. In 2021, Rohingya refugees from Myanmar filed a class action lawsuit in California against Meta Platforms, Inc., the owner of Facebook, seeking a US$150 billion judgment for the social media giant’s alleged support of hate speech, misinformation and incitement of violence against Rohingya Muslims by members of Myanmar’s military, dozens of whom have been designated by OFAC. In making their statement of claim, the plaintiffs cited efforts by Harvard University’s Berkman Klein Center for Internet & Society to warn Facebook that its platform was being used by the Burmese authorities to incite violence. The plaintiffs argued that although Facebook was put on notice, it ignored the warnings. On 14 December 2022, the U.S. Federal District Court issued an Order Granting Motion to Dismiss with Leave to Amend. The Court held that the claim failed to connect Facebook’s platform with the alleged injury that the plaintiffs experienced due to an attack by the Myanmar military, but declined to address whether Facebook was immune under the Communications Decency Act. The case is currently being heard on appeal by the U.S. Court of Appeals for the Ninth Circuit.

The settlement reached last month in Foundation for Global Political Exchange v. Department of the Treasury is a good reason for owners of social media companies to breathe a sigh of relief. OFAC made clear that providing platforms to designated persons for speech protected under the First Amendment is not on its own a violation of U.S. sanctions laws, provided no financial transaction or other exchange of benefits takes place. Yet while hosting the speech of designated persons may not be a violation of U.S. sanctions laws, risk for other forms of liability may arise, as clearly demonstrated by Jane Doe et al. v. Meta Platforms, Inc.