Re: Bernstein files for partial summary judgement in crypto case

[jim bell <jimbell@pacifier.com>]

At 05:28 PM 7/25/96 -0700, John Gilmore wrote:
>Here's the press release on the latest development in the Bernstein
>case.  

>July 26, 1996  				     Electronic Frontier Foundation 
>In his 45-page memorandum in support of his motion, Bernstein sets forth
>several First Amendment arguments: 

>*       Any legal framework that requires a license for First Amendment
>protected speech, which may be granted or withheld at the discretion of a
>government official, is a prior restraint on speech.  In order for this
>framework to be acceptable, the government has the burden of showing that
>publication 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.  The government has not met this burden
>regarding the ITAR legal framework. 

Maybe it's just me, but why would even the _certainty_ that a publication 
will "surely result in direct, immediate, and irreparable damage to our 
Nation or its people" justify violation of 1st amendment rights?   There 
are, certainly, kinds of "damage" which should not warrant prohibition:  If, 
for instance, a business regularly cheats its customers, my investigation of 
that behavior and revealing it publicly would certain "damage" that 
business, but we conclude that's justified if for no other reason than it's 
the truth.  

Would digging up an embarrassing revelation about "our Nation or its people" 
constitute "irreparable damage" sufficient to justify concluding that the 
1st amendment didn't apply?  Had the fact that we'd slaughtered Indians in 
the late 1800's been kept secret until today, would its discovery and 
publication be that "irreparable damage" that regulation could legitimately 
seek to prohibit?  Would the news that the events leading up to the "Gulf of 
Tonkin resolution" were a fraud cause "irreparable damage"?  Would finding 
out the truth about the Watergate incident cause "irreparable damage"?    

In a sense, speaking of any of these incidents might cause "irreparable 
damage"  to government and people, but it's "damage" that a person should 
simply be entitled to do, given the concepts of free speech and the 1st 
amendment.

In short, I don't think Bernstein should give an inch.  There may, in fact, 
be limits on the 1st amendment, but I don't see this as being one of them.



Jim Bell
jimbell@pacifier.com