Re: Bernstein hearing: The Press Release

[Rich Burroughs <richieb@teleport.com>]

At 04:39 PM 9/21/96 -0800, Jim Bell wrote:
>At 02:03 PM 9/18/96 -0700, John Gilmore wrote:

[snip]
>>*       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."
[snip]

Jim, that's a quote of Potter Stewart from the Pentagon Papers case, if I'm
not mistaken.  It's not written in the Constitution, but Supreme Court
precedent is the next best thing as far as con law goes.

>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.

What you need to do is look at the case law :)

The government can restrict speech in time, place or manner, according to
the courts.  Restricting content is more difficult, and places a much
heavier burden on the gov.

To expect people writing about and arguing the case to completely ignore
the existing case law is foolish, IMHO.

>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.

I think that John and EFF are doing us a huge service by their involvement
in the case.

I am very optimistic about the outcome of the Bernstein case.  Judge
Patel's ruling that source code = speech really puts the debate in the
plaintiff's court, and we saw some of that in the hearing on Friday, IMHO.  

Much of the argument was about prior restraint, with the government trying
to claim that they are only trying to restrict a specific functionality of
crypto code and not the ideas behind it.  This seemed to be a fairly weak
argument to me, and the plaintiff's attorney pointed out that the ideas
embodied in the source code are what dictate the functionality.

The plaintiff's attorney (Cindy Cohn) also argued 3 lines of cases that
bear on the issue:

1) Compelled speech.

2) Anonymity.

3) Freedom of association.

Cohn also argued that the statute is vague (terms like "general principle"
and "fundamental research") and overbroad; also that the current version of
ITAR does not even meet the scrutiny of the DOJ's own OLC review of the
statute.

When the attorney for the gov tried to drift back to the issue of whether
source code is speech, Judge Patel said, "You'll get that chance again in
another court with more judges."

Near the end of the hearing, the government attorney stated that the
statute describes "what is not controlled," which elicited a pretty hearty
laugh from the spectators.  Not a real strategic admission.

The plaintiff's brief is at:

http://www.eff.org/pub/Privacy/ITAR_export/Bernstein_case/Legal/960726_filin
g/motion_partsj.html

There's quite a bit of info in that same directory.



Rich


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