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Re: Bernstein hearing: The Press Release

At 10:44 PM 9/22/96 -0700, John Gilmore wrote:
>The wording there is taken directly from the controlling Supreme Court
>case, which I believe is the Pentagon Papers case.  

I double-checked, and it is Potter Stewart from that case.  Here's the
whole paragraph:

"But in the cases before us, we are asked neither to construe specific
regulations nor to apply specific laws. We are asked, instead, to perform a
function that the Constitution gave to the Executive, not the Judiciary. We
are asked, quite simply, to prevent the publication by two newspapers of
material that the Executive Branch insists should not, in the national
interest, bepublished. I am convinced that the Executive is correct with
respect to some of the documents involved. But I cannot say that disclosure
of any of them will surely result in direct, immediate, and irreparable
damage to our Nation or its people. That being so, there can under the
First Amendment be but one judicial resolution of the issues before us. I
join the judgments of the Court."

Interestingly, Stewart says earlier:

"I should suppose that moral, political, and practical considerations would
dictate that a very first principle of that wisdom would be an insistence
upon avoiding secrecy for its own sake. For when everything is classified,
then nothing is classified, and the system becomes one to be disregarded by
the cynical or the careless, and to be manipulated by those intent on
self-protection or self-promotion. I should suppose, in short, that the
hallmark of a truly effective internal security system would be the maximum
possible disclosure, recognizing that secrecy can best be preserved only
when credibility is truly maintained."


>The example used
>in that case was the departure date and route of a ship carrying US
>troops to war.  The government could sue people who threatened to
>publish such information, prior to publication, and have some chance
>of winning the case.  It's not a guarantee, just a pre-qualification.
>The idea is that if they CAN'T show such a danger, they have NO chance
>of winning.

This is the beauty of Patel's earlier ruling.  The fact that we are
possibly talking about speech places a much stronger burden on the gov to
restrict it.

>The Supreme Court would ignore the prior restraint line issue anyway,
>because it isn't a factor in this case.  The government isn't arguing
>that they have the right to prior-restrain us because of direct,
>immediate and irreperable damage.  Instead they argue that the
>publication itself is being controlled only for its function, not for
>the content of the publication, and therefore in controlling the
>function, they can "incidentally" control the publication.

Anyone who was at the hearing on Friday heard some form of the word
"function" repeated many times.  This definitely seems to be the heart of
the gov's argument.  I think it's not gonna float, but IANAL, either :)


Rich Burroughs  [email protected]  http://www.teleport.com/~richieb
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