Testing the constitutionality of u.s. licensing of news gatherers and researchers traveling to cuba*

The Fifth Amendment right to travel freely abroad notwithstanding, the Supreme Court has upheld on national security grounds a de facto travel ban by which the U.S. government prohibits its citizens to spend money necessary for visiting the island of Cuba unless they receive prior approval from the Treasury Department. However, this article argues that the licensing regime used by Treasury to authorize some academic researchers and news gatherers to report from Cuba probably is unconstitutional. The First Amendment right to publish carries with it the antecedent freedom to gather news and information. The government may limit that freedom only for compelling reasons and only if the restrictions are not based on some constitutionally impermissible criterion or condition. The reason for this is to prevent the government from restricting the flow of information necessary for the American people to make enlightened choices in the democratic process and hold their government in account. Therefore, requiring news gatherers and academic researchers to obtain licenses undermines democratic self-government by placing the government in the position of determining the terms and conditions under which the electorate is informed about a matter of public importance. This article further argues that the criteria used in granting licenses are arbitrarily applied, not reasonably related to the stated goals of the economic embargo of Cuba, and discriminate against some information gatherers according to their employment status and content of their work. Based on this conclusion, the author decided to participate in a legal challenge, in which he and two other academic researchers traveled to Cuba without Treasury licenses in order to test the constitutionality of the regulations. The author’s personal experience is recounted, and the inconclusive outcome of his civil disobedience is reported.