From: jim bell <jimbell@pacifier.com>
Date: Mon, 23 Sep 1996 16:53:34 +0800
To: cypherpunks@toad.com
Subject: Re: Bernstein hearing: The Press Release
Message-ID: <199609230537.WAA15530@mail.pacifier.com>
MIME-Version: 1.0
Content-Type: text/plain


At 05:15 PM 9/22/96 -0700, Rich Burroughs wrote:
>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.

Under the circumstances, I think it would be wise to actually EXPAND our 
protections.  A lot has happened in the last 25 years.  If a reasonably 
extensive list were made of situations and circumstances where the wool was 
pulled over the eyes of Americans by government...and how subsequent 
developments showed that these things were best revealed THEN and not 
later...it could be reasonably argued that there is no or almost no area 
where the "direct, immediate, and irreparable damage" exception is likely to 
realistically exist.

You should point out that the Pentagon Papers case was decided 
notwithstanding an extraordinarily generous set of assumptions common in 
Cold-War America about the power and authority of government, many if not 
most of which would be no longer considered valid.  

Put the opposition on the spot:  Insist that they provide a substantial 
number of examples where speech was expected, was attempted to be restricted 
by gov't under such an exception, where that speech actually occurred 
(either by refusal of the court to intervene or by refusal of a party to the 
case to restrict his speech), and show how this actually caused any "direct, 
immediate, and irreparable damage."

In the absense of such examples, it is reasonable to presume that, 
generally, they don't exist or are so rare as to be ignorable.  (For 
example, in the Progressive case from the middle 70's, the gov't dropped its 
case.  What harm occurred?)

>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 am _not_ suggesting that case law be "ignored."  Rather, point out that 
the case law, even though it goes in your favor, was still decided in a 
thoroughly biased atmosphere and therefore further reductions in government 
authority are appropriate.


Jim Bell
jimbell@pacifier.com