From: John Gilmore <gnu@toad.com>
Date: Mon, 23 Sep 1996 16:56:08 +0800
To: jim bell <jimbell@pacifier.com>
Subject: Re: Bernstein hearing: The Press Release
In-Reply-To: <199609212340.QAA07773@mail.pacifier.com>
Message-ID: <199609230544.WAA08826@toad.com>
MIME-Version: 1.0
Content-Type: text/plain


The EFF press release on the Bernstein hearing said:
> >*       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. 

Jim Bell said:
> 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 
> .... [long discussion] ....

The wording there is taken directly from the controlling Supreme Court
case, which I believe is the Pentagon Papers case.  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.

The Supreme Court didn't even say that publishing the sailing dates
of troop transports *could* be prior-restrained.  What they said was
that they would consider such a case if it ever got to them.  Cases
which didn't meet such a high standard should just be taken care of
by the lower courts.

We aren't conceding anything.  We're pointing out that the
export control law doesn't even meet the standard that the supreme
court has already set for laws like this.

You might want to hold the government to a higher standard than the
threshold they set in the Pentagon Papers case.  Myself, I think they
did an excellent job, especially considering that it was wartime and
that the document the New York Times wanted to publish was classified
but had been leaked.  They didn't permit the government to
prior-restrain publication of it ANYWAY.  The "direct, immediate and
irreperable damage" phrase was them merely trying to think up a
hypothetical document that they MIGHT allow prior restraint to apply
to.

My opinion on criminal and civil law is quite different from the
Supreme Court's.  Still, I am working on having the Supreme Court
confirm my opinion in a particular area -- that of the crypto export
control laws.  I'd rather bring them a nice simple case that focuses
on just one thing.  It's a lot easier for them to decide about the 
thing I really care about, if it doesn't bring in extraneous factors
like exactly where the line should be for permitting prior restraint.

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.  And if
they can legitimately control the speech, then what's all this fuss
about prior restraint when it's punishable speech anyway?  This is the
set of issues that the Supreme Court would tend to look at.

	John

PS:  I'm not a lawyer, and I didn't ask a lawyer to read this over,
so I might have some parts wrong.