NCJ Number
190996
Date Published
1996
Length
9 pages
Annotation
This essay describes the clash between two First Amendment issues -- national security and freedom of speech -- when imposing restraints on the publication of technical data.
Abstract
The Supreme Court’s balancing method allows the justices to accommodate worthy but conflicting interests in a way that allows both interests to survive. Under this method, the Court first determines how much protection should be given to the speech at issue and then decides whether the government’s regulatory interest is sufficiently weighty to justify the challenged restraint. This approach provides a useful analytical framework for assessing the constitutionality of national security controls on the publication of encryption systems and other kinds of technical information. The question arises whether encryption systems and other types of technical data warrant the same full measures of constitutional protection accorded other categories of speech. Critics argue that the free-speech guarantee is intended primarily to protect the speech of advocacy, opinion, and dissent. Under this standard, many forms of scientific and technological speech do not qualify for the full protection of the First Amendment. On this view, the imposition of national security controls on technical data does not violate the First Amendment because it is not part of a governmental effort to regulate individual thought or public opinion. In weighing the Government’s interest in regulation, the first inquiry would assess the magnitude of the harm that would result if a potential adversary used the data to acquire the relevant capability. Together with the gravity of the threatened harm to national security, the Court’s finding on the likelihood of occurrence will generally determine whether the state’s interest in regulation is sufficient to warrant the restriction of First Amendment rights. 5 notes