From: jim bell <jimbell@pacifier.com>
Date: Sun, 22 Sep 1996 15:38:14 +0800
To: "Mark M." <cypherpunks@toad.com
Subject: Re: Bernstein hearing: The Press Release
Message-ID: <199609220525.WAA21842@mail.pacifier.com>
MIME-Version: 1.0
Content-Type: text/plain


At 11:30 PM 9/21/96 -0400, Mark M. wrote:
>On Sat, 21 Sep 1996, jim bell wrote:
>
>> 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."
>
>I believe there is one section in the Constitution that says that speech
>harmful to national security is not protected under the 1st amendment. 

I can't think of what portion of the Constitution you're referring to.  But 
chances are, somebody else will see this reference and comment.

> However,
>I don't agree with this provision at all.  "National security" is a phrase 
that
>is applied to anything from information on the JFK assassination to DES source
>code.

...and it's one of the most abused concepts there is.


>> 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."
>
>If secret information was released, it would cause most people to completely
>lose respect for the government (some people call this damage -- I call it
>progress).

Yes!  I, of course, agree with the latter interpretation as well.   It is 
precisely this distinction which, I believe, makes it so vital that lawsuits 
such as this Bernstein one NOT "concede" what doesn't need to be conceded.  
All they should say is that even if there are secrets which the law should 
protect, they cannot include information known by civilians in peacetime.


>> 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.
>
>There may be certain circumstances under which speech can be directly harmful.
>Military operations and missle launch codes are things that should be kept
>secret.  Information about high-powered weapons should be too.  If the 
Japanese
>had been able to get information about how to build A-bombs during WWII, major
>cities in the U.S. probably would have been completely wiped out.  I don't 
like
>the idea that the government has the power to decide what's harmful and what
>isn't, but there are beneficial uses of the provision.

The few examples that exist, as you've selected them above, seem to be 
almost entirely based on military secrets in time of war.  It is not clear 
whether a non-security clearance civilian is restricted in any way, nor 
should he be.

Jim Bell
jimbell@pacifier.com