Re: [Fw: Jospin's Crypto coup] & functional vs. expressive

Dave Long (
Wed, 26 May 1999 12:42:18 -0700

> > As I read it, the Bernstein v. USDOJ decision[1] was based
> > not upon the protected nature of crypto code as expression,
> > but upon the unconstitutional nature of EAR's prior restraint.
> By my reading, there were several issues:
> a- did Bernstein have standing to bring the suit?
> b- was the regulation a prior restraint of speech?
> c- if so, was it unconstitutional?

I believe we agree in our readings. Prior restraint was an issue because
it was not determined that source code is clearly protected speech. For
example, obscenity, fighting words, incitement, etc. are not protected,
yet it is generally held that they should not be subject to prior restraint.

Let me offer the following source by way of argument:

int wasValid(Case *case)
regulation *reg = case->reg;
activity *act = case->act;


if(isExpression(act->type) && (pctConduct(act->type) < fudge)) {
if(!act->done) {
/* "prior restraint" doctrine */
return 0;
} else {
#if 0 /* !!! TODO: not addressed in Bernstein v. USDOJ */
return wasValidSubsequentPunishment(reg, act);
return (rand() & 8);
} else {
return 1;

Judge Nelson took the latter branch in his dissent, viewing source code as
insufficiently expressive. From United States v. O'Brien:

>This Court has held that when "speech" and "nonspeech" elements are
>combined in the same course of conduct, a sufficiently important
>governmental interest in regulating the nonspeech element can justify
>incidental limitations on First Amendment freedoms.

The majority in Bernstein v. USDOJ took the former branch, viewing the
EAR as prior restraint.

However, nothing was concluded about the middle branch. See FCC v. Pacifica
(Carlin's Filthy Words), which makes the distinction between unacceptable
censorship (prior review and editing) and acceptable subsequent action based
upon content of completed broadcasts. Also see Kingsley Books, Inc. v. Brown,
for an opinion which asserts that prior restraint may even be viable given
suitably distressing content.