THE PROPRIETY OF "FACIAL CHALLENGES" 
TO PRIOR RESTRAINTS ON THE USE OF THE INTERNET 
FOR SCIENTIFIC SPEECH
*

ABSTRACT: Two federal courts of appeals recently ruled that posting encryption source code on the Internet is a form of scientific speech and that export regulations requiring a license for such activity are a prior restraint on expression. However, in their present posture, these cases leave open the possibility that the courts will decide that the plaintiffs, who did not themselves apply for a license, lack standing to attack the export regulations as unconstitutional. The temptation to avoid the merits of the litigation in this way should be rejected. The First Amendment confers standing on litigants to challenge the export regulations as a prior restraint without submitting to its demands.

CITATION: D.H. Kaye, The Propriety of "Facial Challenges" to Prior Restraints on the Internet, 40 Jurimetrics J. 445-456 (2000).

2000 D.H. Kaye


    If there are cases in which those who would proclaim the truth as they see it can be required to submit their ideas to a censor, they are few and far between. "[I]t has been generally, if not universally, considered that it is the chief purpose of the guaranty [of freedom of expression] to prevent previous restraints upon publication."1 As such, "[a]ny prior restraint on expression comes . . . with a 'heavy presumption' against its constitutional validity."2 Even a system of censorship that somehow overcomes this presumption must incorporate certain "procedural safeguards designed to obviate the dangers of a censorship system."3

    Recent litigation has sought to build on these bedrock features of First Amendment law to challenge the government's licensing system for exports of software.4 Under this Byzantine system, exportation of commercial encryption software in printed form is unregulated, but posting the same code on the Internet without restricting foreign access to the site requires the approval of the Department of State or the Department of Commerce.5 Arguing (among many other things), that this requirement infringed the right to communicate their ideas about cryptography, a law professor in Ohio and a computer scientist then in California initiated litigation to test the licensing system. In Junger v. Daley,6 the Court of Appeals for the Sixth Circuit reversed a summary judgment for the government. It stated that "computer source code is an expressive means for the exchange of information and ideas about computer programming . . . that . . . is protected by the First Amendment."7 Because the district court had not applied normal First Amendment standards to the regulations, the court of appeals remanded the case to the district court.8 In Bernstein v. Department of Justice,9 a divided panel of the Court of Appeals for the Ninth Circuit also determined that publishing encryption source code is a form a scientific speech akin to using equations and graphs. It struck down the licensing system as unconstitutional because it offered none of the procedural safeguards demanded of prior restraints on speech. However, the Ninth Circuit vacated the panel opinion to rehear the case en banc.10

    Although the holding that encryption source code is scientific speech makes the export regulations difficult to reconcile with the First Amendment, the remand in Junger and the rehearing in Bernstein might not lead to the invalidation of the regulations. In both cases, the government insisted that plaintiffs lack standing to invoke the prior restraint doctrine--because instead of applying for a license, the professors attacked the licensing system "on its face." The district court in Junger accepted this argument, and the Sixth Circuit left this door wide open on remand.11 And, the issue is sure to surface as the Ninth Circuit rehears Bernstein, since this was the very issue that separated the majority from the dissent in the panel opinion.12

    This article argues that the government's effort to avoid judicial scrutiny of the regulations as applied to "scientific speech" is misguided. Starting from the premise that distributing encryption source code to communicate its mathematical content and to reveal how the mathematics is implemented is "scientific speech," it shows that one should not have to apply for a license to argue that the system lacks the procedural safeguards required of prior restraints on acts of expression.13 Part I discusses the two cases relied on by the district court in Junger and the dissent in Bernstein to deny the plaintiffs standing to question the procedural defects. It demonstrates that one case is simply inapposite, while the other supports precisely the opposite conclusion that these judges drew from it. Part II enucleates the theory behind allowing facial attacks on prior restraints. It concludes that settled First Amendment principles justify applying the normal rule that a prior restraint on expression can be attacked as procedurally defective --even by someone who challenges the law before submitting to it.

I. PLAYING ROULETTE WITH LAKEWOOD

    The district court thought that Junger could not invoke the prior restraint doctrine because his attack went to the licensing requirement on its face rather than to how it had been applied to him. The crux of its reasoning is brief to the point of obscurity. According to the opinion:

In order for a licensing law to be invalidated by a prior restraint facial challenge, it "must have a close enough nexus to expression, or to conduct commonly associated with expression, to pose a real and substantial threat" of censorship. City of Lakewood v. Plain Dealer Publ'g Co., 486 U.S. 750, 759 (1988). The mere fact that regulated conduct possibly can be expressive is not enough to invalidate a law on its face on prior restraint grounds. See Roulette v. City of Seattle, 97 F.3d 300, 303 (9th Cir. 1996) . . . .14

The dissenting judge in Bernstein relied on this opinion, and similarly posited

the basic tenet that facial challenges are inappropriate "unless, at a minimum, the challenged statute 'is directed narrowly and specifically at expression or conduct commonly associated with expression.'" Roulette v. City of Seattle, 97 F.3d 300, 305 (9th Cir.1996) (quoting City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 760 (1988)).15

    Yet, no court (other than the overruled opinion in Junger) has barred a facial challenge to a prior restraint on expression merely because the restraint affects both protected expression and unprotected action. Certainly, Roulette says nothing of the kind. It involved a city ordinance against sitting on sidewalks. This law created no prior restraint at all. The case is merely one of many concerned with jus tertii and overbreadth--the standing of someone to assert that a law cannot be used to punish his conduct only because it might be applied unconstitutionally to other individuals in other situations.16 In contrast, both Junger and Bernstein complain that the licensing system infringes their own First Amendment rights by requiring them to navigate a bureaucratic maze before posting the ideas expressed in source code.

    The dictum in Lakewood is more to the point, but neither the opinion of the four Justices that is quoted17 nor the dissenting opinion suggests that a prior restraint that applies to expressive material cannot be challenged as lacking in procedural safeguards by a party who seeks to distribute that material. If anything, both opinions establish precisely the opposite. Before 1983, the city of Lakewood, Ohio, prohibited all private structures on public property.18 As such, it refused to allow the Plain Dealer Publishing Company to sell its papers from vending machines on sidewalks.19 When the newspaper challenged the ordinance, the district court held that the absolute prohibition of private newspaper racks on city property was unconstitutional.20 The city amended the ordinance, permitting newsracks or other private structures on public property--but only if the mayor or the city council authorized them.21

    Without seeking a permit, the newspaper successfully challenged the ordinance regarding newsracks in the lower federal courts.22 The Supreme Court granted review, but the Justices divided over whether the newspaper should have been required to apply for a permit. In an opinion written by Justice Brennan, the majority of the Justices hearing the case concluded that the facial challenge was proper and that the ordinance offended the First Amendment because it "contains no explicit limits on the mayor's discretion." 23

    Thus, the result in Lakewood supports the view that the export licensing system can be challenged without first running the gauntlet of that system. The reference to "a close enough nexus to expression, or to conduct commonly associated with expression" that the minority of judges in Junger and Bernstein quoted does not undermine this conclusion. Those words came in response to a suggestion in the dissent that if a restraint that did not cover any act of expression were used to suppress speech, a facial attack would not be allowed. Specifically, Justice White wrote that

Someone who wishes to apply for permission . . . to erect a soft-drink vending machine on city property may fear that his application will be denied because he has engaged in some First Amendment protected activities which are not to the City Council's liking. These fears may even be substantial, and they may be based on facts eminently provable in a courtroom; e.g., that the applicant opposed a City Councilwoman in her last election campaign. Yet surely [the ordinance] is not invalid on its face merely because it creates the possibility that the discretion accorded therein to the City Council could be abused in the way that the soft-drink vending machine applicant fears.24

    In response, Justice Brennan agreed that a law that only governs unprotected conduct cannot be attacked on its face as a prior restraint on expression. However, he insisted that there is standing to attack a law that might be used as a prior restraint against expression as long as the law itself is intimately connected with acts of expression. Regulation of other conduct, such as placing soda pop machines on public property or building homes on private land, could be distorted to retaliate against unrelated speech, but such laws do not directly regulate speech-related activity. In Justice Brennan's words, "laws of general application that are not aimed at conduct commonly associated with expression and do not permit licensing determinations to be made on the basis of ongoing expression or the words about to be spoken, carry with them little danger of censorship. For example, a law requiring building permits is rarely effective as a means of censorship."25

    In contrast, the requirement that the publisher of source code obtain the government's permission to publish for export is aimed at the expression itself. Unlike a building permit requirement, it surely permits "licensing determinations to be made on the basis of ongoing expression." Consequently, demanding government approval as a precondition to scientific speech provides a "close enough nexus" to speech to permit an attack on the requirement vel non. Indeed, the nexus here even satisfies the more restrictive test proposed by the Lakewood dissent for granting facial attacks.(26)

    In sum, to portray Lakewood as supporting the view that a speaker cannot challenge a licensing scheme without first applying for the license turns the case on its head. It is disappointing that even a minority of judges in Junger and Bernstein would cite precedent with such inattention to their facts and quote phrases with such disregard of their context.

II. THE REASONS FOR ALLOWING FACIAL ATTACKS

    We have seen that no cases hold that a plaintiff must be denied a license in order to challenge a prior restraint that applies to the publication of expression. But should the courts be so receptive to constitutional challenges? Do the reasons for allowing apparently premature constitutional complaints apply to source code as scientific speech? This section suggests that these questions should be answered in the affirmative.

    As a rule, a party lacks standing to assert the rights of others. In particular, a court generally will not entertain a challenge to the constitutionality of a law unless the party can show that the law is unconstitutional as applied to him.27 For prior restraints on the exercise of First Amendment rights, however, the Supreme Court has relaxed this rule in two respects. It has been recognized time and again28 that a litigant has "standing to challenge a statute on the ground that it delegates overly broad licensing discretion to an administrative officer" (1) "whether or not his conduct could be proscribed by a properly drawn statute," and (2) "whether or not he applied for a license."29 Justice Brennan explicated the basis of the doctrine in Lakewood.30 He identified two "risks to free expression that can be effectively alleviated only through a facial challenge."31 "First, the mere existence of the licensor's unfettered discretion, coupled with the power of prior restraint, intimidates parties into censoring their own speech, even if the discretion and power are never actually abused." 32 "Second, the absence of express standards makes it difficult to distinguish, 'as applied,' between a licensor's legitimate denial of a permit and its illegitimate abuse of censorial power."33

    Thus, the Bernstein court emphasized that the licensing system vested "unbridled discretion" in the government. In Lakewood, the mayor could deny permission for a newsrack if he determined that the refusal would be in the "public interest."34 In administering the export regulations, officials can deny a license whenever an export would be inconsistent with "U.S. national security and foreign policy interests." 35 This, the Ninth Circuit wrote, is "little better than no constraint at all" and comparable to the vacuous "public interest" standard of Lakewood. 36 As a result, the court concluded that Bernstein had standing to invoke the prior restraint doctrine.

    Although this result is correct, further reasoning is necessary to support it. After all, one can argue that this consideration does not apply to the publication of source code as scientific speech because any discretion in licensing encryption software for export is unlikely to be exercised on the basis of antipathy to particular ideas. 37 Surely, Bernstein will not be forced to refrain from expressing his belief in any scientific theory because that theory threatens orthodox views. The potential censorship under the export licensing system is far removed from the persecution of Galileo for espousing the Copernican theory that the earth rotates around the sun,38 or from recrudescent efforts to interfere with the teaching of evolution. 39 Perhaps attempting to draw this distinction, the government argued in Bernstein that "administrators will not, in fact, discriminate on the basis of content." 40

    The Bernstein court dismissed this argument as "beside the point"41 because the "presumption that [an] official will act in good faith 'is the very presumption that the doctrine forbidding unbridled discretion disallows.'"42 However, this rejoinder seems too mechanical. If the central concern of the doctrine that allows facial attacks is that unbridled discretion carries with it the risk of viewpoint discrimination, yet the risk of viewpoint discrimination in administering the export regulations is de minimis, then the doctrine is being misapplied. Furthermore, it is not obvious that the second justification offered in Lakewood for relaxing standing requirements applies to the export regulations. In granting permits to allow public demonstrations or other speech,

[s]tandards provide the guideposts that check the licensor and allow courts quickly and easily to determine whether the licensor is discriminating against disfavored speech. Without these guideposts, post hoc rationalizations by the licensing official and the use of shifting or illegitimate criteria are far too easy, making it difficult for courts to determine in any particular case whether the licensor is permitting favorable, and suppressing unfavorable, expression.43

In regulating the export of encryption software, however, precise standards are not needed to prevent discrimination against "disfavored speech."

    Nevertheless, the doctrine that relaxes the standing requirement applies here in light of the benefits that accrue from allowing a wide class of individuals to challenge a prior restraint without first subjecting themselves to the restraint. The benefits flow from the shorter lifetime of unconstitutional prior restraints and the corresponding enrichment of public discourse. As the Ninth Circuit wrote at the conclusion of its opinion:

[I]nsofar as the . . . regulations on encryption software were intended to slow the spread of secure encryption methods to foreign nations, the government is intentionally retarding the progress of the flourishing science of cryptography. To the extent the government's efforts are aimed at interdicting the flow of scientific ideas (whether expressed in source code or otherwise), as distinguished from encryption products, these efforts would appear to strike deep into the heartland of the First Amendment.44

    As a result, it should be enough that the existence of the prior restraint "intimidates parties into censoring their own speech"45--regardless of the criteria or basis for the censorship and the extent to which the censor has discretion to pick and chose among applicants for licenses. To paraphrase Lakewood, "the difficulty and delay inherent in the 'as applied' challenge can itself discourage litigation. A [scientist seeking to promulgate new ideas] may not have the time or financial means to challenge the licensor's action."46

    Moreover, when the attack goes to the procedures necessary to ensure prompt judicial determinations in licensing decisions, what is the point of waiting for the defective procedures to be employed against the litigant?47 Freedman v. Maryland prevents the suppression of speech pending an authoritative judicial confirmation of the censor's decision.48 Scientific speech is at least as important as new releases of movies. Its suppression should not be allowed without adherence to the procedures that are required to avoid improper restraints on other types of expression.

* * *

    If one accepts the premise, embraced by two courts of appeals, that posting encryption source code on the Internet is a form of scientific speech, then the export regulations that require a license for this speech constitute a direct, prior restraint on expression. The First Amendment confers standing on litigants to challenge this restraint without submitting to its demands.

 


NOTES

1. Near v. Minnesota, 283 U.S. 697, 713 (1931).

2. Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971) (citations omitted).

3. Freedman v. Maryland, 380 U.S. 51, 58 (1965). In Freedman, Justice Brennan, speaking of a state's effort to use a state board of censors for motion picture films, outlined these procedures in the following terms:

[W]e hold that a noncriminal process which requires the prior submission of a film to a censor avoids constitutional infirmity only if it takes place under procedural safeguards designed to obviate the dangers of a censorship system. First, the burden of proving that the film is unprotected expression must rest on the censor. . . . Second, while the State may require advance submission of all films, in order to proceed effectively to bar all showings of unprotected films, the requirement cannot be administered in a manner which would lend an effect of finality to the censor's determination whether a film constitutes protected expression. The teaching of our cases is that, because only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression, only a procedure requiring a judicial determination suffices to impose a valid final restraint. To this end, the exhibitor must be assured, by statute or authoritative judicial construction, that the censor will, within a specified brief period, either issue a license or go to court to restrain showing the film. Any restraint imposed in advance of a final judicial determination on the merits must similarly be limited to preservation of the status quo for the shortest fixed period compatible with sound judicial resolution. Moreover, we are well aware that, even after expiration of a temporary restraint, an administrative refusal to license, signifying the censor's view that the film is unprotected, may have a discouraging effect on the exhibitor. Therefore, the procedure must also assure a prompt final judicial decision, to minimize the deterrent effect of an interim and possibly erroneous denial of a license.
Id. at 58-59 (citations omitted). Cases applying these three safeguards are reviewed in FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 238 (1990) (Brennan, J., concurring).

4. The relevant statutes and regulations are, for military encryption software, the Arms Export Control Act, 22 U.S.C. 2778 (1990), the International Traffic in Arms Regulations, 22 C.F.R. Pts. 120-30 (1994), and, for nonmilitary encryption software, Export Administration Act of 1979, 50 U.S.C. 2401-2420 (1991), and the Export Administration Regulations, 15 C.F.R. Pts. 730-770 (1997).

5. See Junger v. Daley, 209 F.3d 481 (6th Cir. 2000):

The Export Administration Regulations create a comprehensive licensing scheme to control the export of nonmilitary technology, software, and commodities. In 1996, the President transferred export jurisdiction over nonmilitary encryption items from the State Department to the Commerce Department's Bureau of Export Administration.

Encryption software, including both source code and object code, is regulated under Export Control Classification Number 5D002 for national security reasons. In addition, encryption technology and encryption hardware are regulated for national security reasons under different Classification Numbers. Generally, the Regulations require a license for the export of all encryption items to all foreign destinations, except Canada. Although the regulations provide some exceptions, most encryption software in electronic form remains subject to the license requirements for export. Encryption software in printed form, however, is not subject to the Regulations.

The Regulations define "export" as the "actual shipment or transmission of items subject to the EAR [Export Administration Regulations] out of the United States." For encryption software, the definition of "export" also includes publication of the software on the Internet, unless steps are taken to restrict foreign access to the Internet site.
Id. at 483 (citations omitted).

    The distinction between printed and electronic versions of source code has given rise to the quip, "They think terrorists can't type?" Apparently that is the thinking in Washington, for "the BXA [Bureau of Export Administration] has indicated that it reserves the right to control scannable source code in printed form." Bernstein v. Department of State, 974 F. Supp. 1288, 1306 (N.D. Cal. 1997), aff'd, 176 F.3d 1132, 1136 (9th Cir.), vacated for rehearing en banc, 192 F.3d 1308 (1999). "[T]he irrationality of the regulatory scheme," Rubin v. Coors Brewing Co., 514 U.S. 476, 490 (1995), suggests that the regulation does not advance a government interest sufficiently to withstand First Amendment scrutiny.

6. 209 F.3d 481 (6th Cir. 2000).

7. Id. at 485.

8. The opinion instructs the trial court to evaluate the substantive justifications that the government can offer for its licensing system, but it makes no mention of the procedural safeguards normally required of prior restraints on expression.

9. 176 F.3d 1132, vacated for rehearing en banc, 192 F.3d 1308 (9th Cir. 1999).

10. For a more complete discussion of the history and details of the district and circuit court cases and an examination of the vulnerability of the export regulations to First Amendment attack, see John J. Browder, Note, Encryption Source Code and the First Amendment, 40 Jurimetrics J. 425 (2000). See also Robert Post, Encryption Source Code and the First Amendment, 15 Berkeley Tech. L.J. 713 (2000); Lee Tien, Publishing Software as a Speech Act, 15 Berkeley Tech. L.J. 629 (2000).

11. Junger, 209 F.3d at 485 ("Before any level of judicial scrutiny can be applied to the Regulations, Junger must be in a position to bring a facial challenge to these regulations. In light of the recent amendments to the Export Administration Regulations, the district court should examine the new regulations to determine if Junger can bring a facial challenge.").

12. Bernstein, 176 F.3d at 1147, 1149 (dissenting opinion) ("Because this is a law of general application focused at conduct, Bernstein is not entitled to bring a facial challenge. The district court's injunction based upon the finding of a facial prior restraint is thus impermissible. This is not to say that Bernstein's activities would not be entitled to First Amendment protection, but that the legal path chosen to get that protection must be the correct one.").

13. This premise is vital, but it is not the subject of this article. If, contrary to the two courts of appeals opinions, the distribution of encryption source code to communicate its mathematical content and to reveal how the mathematics is implemented is not "scientific speech" within the scope of the First Amendment's guarantee of freedom of expression, then the argument for standing to attack the licensing system without seeking a license collapses.

14. Junger v. Daley, 8 F. Supp. 2d 708, 718 (N.D. Ohio 1998), rev'd on other grounds, 209 F.3d 481 (6th Cir. 2000).

15. 176 F.3d at 1149.

16. See generally, e.g., Richard H. Fallon, Jr., Making Sense of Overbreadth, 100 Yale L.J. 853 (1991); Robert A. Sedler, The Assertion of Constitutional Jus Tertii: A Substantive Approach, 70 Calif. L. Rev. 1308 (1982).

17. Only seven Justices participated in Lakewood, and these seven split four to three.

18. 486 U.S. at 753.

19. Id.

20. Id.

21. Id. The city enacted two ordinances. One provided for licensing newsracks on city property. The second gave the city council unlimited discretion to grant or deny applications for all other exclusive uses of city property.

22. Id. at 755. The district court ruled against the newspaper, but the Sixth Circuit Court of Appeals held that the ordinance violated the First Amendment because it gave the city "unbounded discretion" and included indemnity requirements that applied only to newsrack owners. Id.

23. . Id. at 769. Citing Freedman v. Maryland, Justice Brennan also observed that "[n]owhere in the ordinance is either body required to act with reasonable dispatch. Rather, an application could languish indefinitely before the [city] Council, with the Newspaper's only judicial remedy being a petition for mandamus." Id. at 771. But the Court rested its action on the fact that "[e]ven if judicial review were relatively speedy, such review cannot substitute for concrete standards to guide the decision-maker's discretion." Id. (citation omitted).

24. Id. at 772, 788-89 (dissenting opinion of Justice White, joined by Justices Stevens and O'Connor).

25. Id. at 760-61.

26. The dissent agreed "that certain licensing laws that 'giv[e] a government official ... substantial power to discriminate based on the content or viewpoint of speech' are unconstitutional on their face-- . . . even without the potential licensee even making an application for a license." Id. at 774. But the dissent criticized the Court's statement "that this doctrine applies whenever the license law has 'a close . . . nexus to expression, or to conduct commonly associated with expression" as "unduly broad." Id. Instead, Justice White suggested that "[t]he doctrine, as I see it, applies only when the specific conduct which the locality seeks to license is protected by the First Amendment." Id. Applying the dissent's "is protected by" standard yields the same conclusion as the Court's "close nexus" standard. If publishing source code to communicate with students of cryptography is scientific speech, then "the specific conduct which the [government] seeks to license is protected by the First Amendment," and the publisher need not "even [make] an application for a license." Id.

27. . See, e.g., New York v. Ferber, 458 U.S. 747, 767 (1982) ("The traditional rule is that a person to whom a statute may constitutionally be applied may not challenge that statute on the ground that it may conceivably be applied unconstitutionally to others in situations not before the Court."). This hoary notion is questioned in Matthew D. Adler, Rights Against Rules: The Moral Structure of American Constitutional Law, 97 Mich. L. Rev. 1, 157 (1998).

28. See, e.g., Thornhill v. Alabama, 310 U.S. 88, 97 (1940) ("Proof of an abuse of power in the particular case has never been deemed a requisite for attack on the constitutionality of a statute purporting to license the dissemination of ideas.").

29. Freedman v. Maryland, 380 U.S. 51, 56 (1965). The first feature applies not only to prior restraints, but to other laws that inhibit the exercise of First Amendment rights. The overbreadth and vagueness doctrines give an individual, to whom a law is constitutionally applied, standing to argue that it is unconstitutional on its face--meaning that, as written, the law could be applied unconstitutionally in other situations. In large part, this First Amendment exception is predicated on "a judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression." Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973). However, to avoid "the risk that the doctrine itself might sweep so broadly that the exception to ordinary standing requirements would swallow the general rule" (Members of City Council of City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 799 (1984)), the Supreme Court has insisted that "particularly where conduct and not merely speech is involved, . . . the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." Broadrick, 413 U.S. at 615. This limitation on the overbreadth doctrine has no bearing on the claims in Bernstein and Junger, since both plaintiffs are asserting that the law would be unconstitutional as applied to their own actions. See supra Part I; cf. New York v. Ferber, 458 U.S. 747 (1982) (proprietor of bookstore who knowingly sold child pornography not permitted to challenge state law as unconstitutional on its face in that it might encompass medical books and educational sources). See generally Fallon, supra note 16.

30. See also Thornhill v. Alabama, 310 U.S. 88 (1940):

The cases when interpreted in the light of their facts indicate that the rule is not based upon any assumption that application for the license would be refused or would result in the imposition of other unlawful regulations. Rather it derives from an appreciation of the character of the evil inherent in a licensing system. The power of the licensor against which John Milton directed his assault by his 'Appeal for the Liberty of Unlicensed Printing' is pernicious not merely by reason of the censure of particular comments but by reason of the threat to censure comments on matters of public concern. It is not merely the sporadic abuse of power by the censor but the pervasive threat inherent in its very existence that constitutes the danger to freedom of discussion. One who might have had a license for the asking may therefore call into question the whole scheme of licensing when he is prosecuted for failure to procure it.
Id. at 97 (footnote & citations omitted).

31. 486 U.S. at 757.

32. Id.

33. Id. at 758.

34. 486 U.S. at 769.

35. Bernstein, 176 F.3d at 1138.

36. Id. at 1139.

37. Indeed, the government funds research to advance cryptographic theory and to develop effective encryption software.

38. Both Galileo's resistance to the church and the extent of the persecution often are overstated. The following account is adapted from the Encyclopaedia Brittanica Online, at http://www.eb.com:180/bol/topic?artcl=105766&seq_nbrapage=n&isctn=2 (last visited Oct. 9, 2000):

    In 1615, Inquisition consultants pronounced heretical the Copernican theory that the earth rotates about the sun. Robert Cardinal Bellarmine admonished Galileo not to "hold or defend" the Copernican theory. For years, Galileo kept a low profile on the issue, but in 1624, he obtained the permission of the newly appointed Pope Urban VIII to write a book about theories of the universe as long as the Copernican theory was treated only hypothetically. The book, Dialogue Concerning the Two Chief World Systems, Ptolemaic & Copernican, was finished in 1630, and Galileo sent it to the censors. The Florentine censors approved its publication, and it appeared in 1632. But the dialogue appeared to ridicule Pope Urban's views, and the pope convened a special commission that recommended that the Inquisition bring a case against Galileo.

    During his first appearance before the Inquisition in 1633, Galileo was confronted with a 1616 edict improperly placed in the Inquisition files recording that he was forbidden to discuss the Copernican theory. In his defense Galileo produced a letter from Cardinal Bellarmine, by then dead, stating that he was admonished only not to hold or defend the theory. The case was at somewhat of an impasse, and, in what can only be called a plea bargain, Galileo confessed to having overstated his case. He was pronounced to be vehemently suspect of heresy, was condemned to life imprisonment, and was made to abjure formally. There is no evidence that at this time he whispered, "Eppur si muove" ("And yet it moves").

    The "imprisonment" was mild. Galileo was never in a dungeon or tortured. During the Inquisition process, he stayed mostly at the house of the Tuscan ambassador to the Vatican and for a short time in a comfortable apartment in the Inquisition building. After the process, he spent six months at the palace of the archbishop of Siena. He then moved into a villa in the hills above Florence, where he remained for the rest of his life.

39. See, e.g., Jeanne Anderson, The Revolution Against Evolution, or "Well, Darwin, We're Not in Kansas Anymore," 29 J.L. & Educ. 398 (2000); Constance Holden, Kansas Dumps Darwin, Raises Alarm Across the United States, 285 Science 1186 (1999); Robert Vaught, Comment The Debate over Evolution: A Constitutional Analysis of the Kansas State Board of Education, 48 U. Kan. L. Rev. 1013 (2000).

40. 176 F.3d at 1139. It would have been more accurate for the government to argue that the export regulations do not discriminate on the basis of viewpoint. See United States v. Playboy Entertainment Group, Inc., 120 S. Ct. 1878 (2000) (restricting the hours at which sexually explicit material may be broadcast on cable television constitutes content discrimination regardless of whether the program criticizes or condones the conduct it portrays).

41. 176 F.3d at 1139.

42. Id. (quoting Lakewood).

43. Lakewood, 486 U.S. at 758.

44. Id. at 1145. The opinion added that:

In this increasingly electronic age, we are all required in our everyday lives to rely on modern technology to communicate with one another. This reliance on electronic communication, however, has brought with it a dramatic diminution in our ability to communicate privately. Cellular phones are subject to monitoring, email is easily intercepted, and transactions over the internet are often less than secure. Something as commonplace as furnishing our credit card number, social security number, or bank account number puts each of us at risk. Moreover, when we employ electronic methods of communication, we often leave electronic "fingerprints" behind, fingerprints that can be traced back to us. Whether we are surveilled by our government, by criminals, or by our neighbors, it is fair to say that never has our ability to shield our affairs from prying eyes been at such a low ebb. The availability and use of secure encryption may offer an opportunity to reclaim some portion of the privacy we have lost. Government efforts to control encryption thus may well implicate not only the First Amendment rights of cryptographers intent on pushing the boundaries of their science, but also the constitutional rights of each of us as potential recipients of encryption's bounty. Viewed from this perspective, the government's efforts to retard progress in cryptography may implicate the Fourth Amendment, as well as the right to speak anonymously, see McIntyre v. Ohio Elections Comm'n, 514 U.S. 334 (1995), the right against compelled speech, see Wooley v. Maynard, 430 U.S. 705, 714 (1977), and the right to informational privacy, see Whalen v. Roe, 429 U.S. 589, 599-600 (1977). [W]e leave for another day the resolution of these difficult issues . . . ."
Id. at 1145-46.

45. Lakewood, 486 U.S. at 757.

46. Id. at 758.

47. See Shuttlesworth v. Birmingham, 394 U.S. 147, 151 (1969) ("'The Constitution can hardly be thought to deny to one subjected to the restraints of [a licensing law] the right to attack its constitutionality, because he has not yielded to its demands'" (quoting Jones v. Opelika, 316 U.S. 584 (1942) (Stone, C.J., dissenting), adopted per curiam on rehearing, 319 U.S. 103, 104 (1943)). This is consistent with the helpful thesis developed in Richard H. Fallon, Jr., As-applied and Facial Challenges and Third-party Standing, 113 Harv. L. Rev. 1321 (2000), that "the availability of facial challenges varies on a doctrine-by-doctrine basis, in which different underlying constitutional values are protected in different ways by different kinds of substantive tests." Id. at 1327.

48. Cf. Lakewood, 486 U.S. at 758 ("Until a judicial decree to the contrary, the licensor's prohibition stands. In the interim, opportunities for speech are irretrievably lost.").

* D.H. Kaye is Regents' Professor, Arizona State University College of Law. He thanks James Weinstein for comments on a draft of this paper.