Re: Bernstein hearing: The Press Release

[jim bell <jimbell@pacifier.com>]

At 02:03 PM 9/18/96 -0700, John Gilmore wrote:
>Judge Patel to Decide if Government Restrictions on 
>Cryptography Violate the First Amendment
>San Francisco, CA -- On Friday, September 20, 1996, Judge Marilyn Hall
>Patel will hold hearings in a case with far-reaching implications for
>personal privacy, U.S. competitiveness, and national security.  Mathematician 
>Daniel J. Bernstein, a Research Assistant Professor in the Department of 
>Mathematics, Statistics and Computer Science at the University of Illinois at 
>Chicago, has sued several Federal agencies on the grounds that the 
>agencies' requirement that he obtain a license prior to publishing his 
>ideas about cryptography violates his First Amendment right to freedom 
>of speech.
[trimmed]
>LEGAL ARGUMENTS
>
>*       Any legal framework that allows a government bureaucrat to 
>censor speech before it happens is an unconstitutional prior restraint.  
>The government is not allowed to set up such a drastic scheme 
>unless they can prove that publication of such information will 
>"surely result in direct, immediate, and irreparable damage to our 
>Nation or its people" and that the regulation at issue is necessary 
>to prevent this damage. 

At the risk of being a devil's advocate, let me suggest that you are 
conceding too much even with the preceding paragraph.  The 1st amendment 
says nothing about preventing speech  which (even admittedly) would result 
in "direct, immediate, and irreparable damage to our nation or its people."

Indeed, if you follow the news over the last 5-10 years, you see numerous 
examples of news items getting publicized (sometimes 30-40 years late) which 
might arguably have cause "irreparable damage."  That recent revelation 
about the POWs being left in Korea would have been one such example.  The 
intentional detonation of that H-bomb in 1954, knowing that prevailing winds 
would shower thousands of people with fallout was another.  The US 
military's experimentation with chemical weapons on our own people after 
WWII is another.  The fraud of the Gulf of Tonkin Resolution is another.  
The Pentagon Papers incident is another.  The Tuskeegee syphillis 
experiments on blacks which ended in 1972 was another.  The massive 
pollution at decomissioned military bases.  The Iran/Contra arms smuggling 
deals, along with the cocaine smuggling stories which are more recently 
being pursued, are yet another.

I could list many more, but won't because of lack of space.  But notice 
that, presumably, each and every one of these incidents was AT ONE TIME kept 
secret, arguably because it would be better for the country to do so.  Thus, 
presumably it was thought or at least asserted that to reveal them would 
cause "damage to our nation or its people."

The way you've written the paragraph I've quoted above, it appears that you 
are somehow acknowleding that there  are certain circumstances where certain 
types of speech are controllable because they are "harmful," but you fail to 
explain how even this constitutional restiction is tolerable.    Frankly, I 
don't see it!  What you need to do is to be far more specific about such 
speech and exactly where it can be controlled.

I should point out, also, that this is the second time I've mentioned this.  
You're doing us a disservice if you concede too much in this area.






Jim Bell
jimbell@pacifier.com