From: jim bell <jimbell@pacifier.com>
To: John Gilmore <cypherpunks@toad.com
Message Hash: b2ed4ab7f21fe664459b5ad19b8a95ff7f2784e1cc372d99b8c35ea74b8a1863
Message ID: <199607270022.RAA09976@mail.pacifier.com>
Reply To: N/A
UTC Datetime: 1996-07-27 02:43:14 UTC
Raw Date: Sat, 27 Jul 1996 10:43:14 +0800
From: jim bell <jimbell@pacifier.com>
Date: Sat, 27 Jul 1996 10:43:14 +0800
To: John Gilmore <cypherpunks@toad.com
Subject: Re: Bernstein files for partial summary judgement in crypto case
Message-ID: <199607270022.RAA09976@mail.pacifier.com>
MIME-Version: 1.0
Content-Type: text/plain
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
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