First Amendment in Cyberspace - Unit 3
Eric B. Easton, University of Baltimore School of Law

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Applying the Doctrine

In both the CDA and COPA cases, the courts relied on plaintiffs' representations that blocking and filtering software represented a less restrictive way to protect children from on-line pornography. Yet, when the board of trustees of the Loudoun County, Virginia, public library installed filtering software called X-Stop on library computers, a coalition that included the ACLU challenged the policy.

In Mainstream Loudoun v. Board of Trustees of the Loudoun County Library, U.S. District Judge Leonie Brinkema found that the library was a limited public forum, that the strict scrutiny standard applied to any content-based restriction in that forum, and that the board's policies could not withstand that level of scrutiny. She also agreed with the plaintiffs that the policy was an unconstitutional prior restraint, demonstrating the full power of Reno v. ACLU's holding and providing a thorough lesson in First Amendment analysis.

Mainstream Loudoun v. Loudoun County Library
24 F. Supp. 2d 552 (E.D. Va. 1998)

At issue in this civil action is whether a public library may enact a policy prohibiting the access of library patrons to certain content-based categories of Internet publications. Plaintiffs are a Loudoun County non-profit organization, suing on its own behalf and on behalf of its members, and individual Loudoun County residents who claim to have had their access to Internet sites blocked by the defendant library board's Internet policy. They, along with plaintiff-intervenors ("intervenors"), individuals and other entities who claim that defendant's Internet policy has blocked their websites or other materials they placed on the Internet, allege that this policy infringes their right to free speech under the First Amendment. Defendant, the Board of Trustees of the Loudoun County Library, contends that a public library has an absolute right to limit what it provides to the public and that any restrictions on Internet access do not implicate the First Amendment.

On October 20, 1997, defendant passed a "Policy on Internet Sexual Harassment" stating that the Loudoun County public libraries would provide Internet access to its patrons subject to the following restrictions: (1) the library would not provide e-mail, chat rooms, or pornography; (2) all library computers would be equipped with site-blocking software to block all sites displaying: (a) child pornography and obscene material; and (b) material deemed harmful to juveniles; (3) all library computers would be installed near and in full view of library staff; and (4) patrons would not be permitted to access pornography and, if they do so and refuse to stop, the police may be called to intervene. It is the second restriction in the Policy that lies at the heart of this action.

To effectuate the second restriction, the library has purchased X-Stop, commercial site-blocking software manufactured by Log-On Data Corporation. While the method by which X-Stop chooses sites to block has been kept secret by its developers, it is undisputed that it has blocked at least some sites that do not contain any material that is prohibited by the Policy.

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Plaintiffs and intervenors both allege that the Policy, as written and as implemented, violates their First Amendment rights because it impermissibly discriminates against protected speech on the basis of content and constitutes an unconstitutional prior restraint. In response, defendant contends: (1) intervenors do not have standing; (2) the Policy does not implicate the First Amendment and is reasonable; (3) the Policy is the least restrictive means to achieve two compelling government interests; and (4) the library has statutory immunity from this action.

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III. Strict Scrutiny Standard

Defendant has also requested that we reconsider our earlier findings (1) that the Policy implicates the First Amendment and (2) that the appropriate standard of review is strict scrutiny.

A. Implicating the First Amendment

Defendant first contends that the Policy should really be construed as a library acquisition decision, to which the First Amendment does not apply, rather than a decision to remove library materials. Plaintiffs and intervenors contend that this issue has already been decided by this Court and is the law of the case. See Mainstream Loudoun v. Board of Trustees of the Loudoun County Library, et al., 2 F. Supp. 2d 783, 794-95 (E.D. Va. 1998) ("The Library Board's action is more appropriately characterized as a removal decision"; "We conclude that [Bd. of Ed. v. Pico, 457 U.S. 853 (1982)] stands for the proposition the First Amendment applies to, and limits, the discretion of a public library to place content-based restrictions on access to constitutionally protected materials within its collection.").

We addressed the acquisition/removal argument at length in our previous decision and defendant has not presented a single new argument or authority to support its position. Indeed, defendant's own expert, David Burt, undercuts its argument by acknowledging that "filtering cannot be rightly compared to 'selection,' since it involves an active, rather than passive exclusion of certain types of content." Therefore, we decline to reconsider our earlier ruling on this issue.

B. Forum Analysis

Next, defendant contends that even if the First Amendment does apply, we should apply a less stringent standard than strict scrutiny. Specifically, defendant argues that because the library is a non-public forum, the Policy should be reviewed by an intermediate scrutiny standard, examining whether it is reasonably related to an important governmental interest. Citing Kreimer v. Bureau of Police, 958 F.2d 1242 (3d Cir. 1992), defendant argues that public libraries are non-public fora and, therefore, content-based speech regulations are not subject to the strict scrutiny standard. Rather, it asserts, such regulations need only be "reasonable and viewpoint neutral" to be upheld. Plaintiffs and intervenors respond that defendant has misread Kreimer and moreover that the library is a limited public forum in which content-based regulations are subject to strict scrutiny.

Defendant concedes that the Policy is a content-based regulation of speech and that content-based regulations of speech in a limited public forum are subject to strict scrutiny. The only issue before us, then, is whether the library is a limited public forum or a non-public forum.

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The only court to have examined whether a public library constitutes a limited public forum is the Third Circuit in Kreimer. In determining that the public library constituted a limited public forum, the court considered three factors: government intent; extent of use; and nature of the forum. We agree that these are the crucial factors in determining whether a forum is a limited or a non-public forum.

1. Government Intent

The record establishes that the Loudoun County government, through defendant library board, intended to create a public forum when it authorized its public library system. In a resolution it adopted in 1995 and reaffirmed last year, defendant declared that its "primary objective ... [is] that the people have access to all avenues of ideas." Furthermore, the same resolution states that the public interest requires "offering the widest possible diversity of views and expressions" in many different media, not diminishing the library collection simply because "minors might have access to materials with controversial content," not excluding any materials because of the nature of the information or views within, and not censoring ideas. We find that defendant intended to designate the Loudoun County libraries as public fora for the limited purposes of the expressive activities they provide, including the receipt and communication of information through the Internet.

2. Extent of Use

As to the extent of use the government has allowed, defendant has designated the library for the use of "the people" and has declared that "library access and use will not be restricted nor denied to anyone because of age, race, religion, origin, background or views." Defendant has opened the library to the use of the Loudoun County public at large and has significantly limited its own discretion to restrict access, thus indicating that it has created a limited public forum.

3. Nature of the Forum

The final consideration is whether the nature of the forum is compatible with the expressive activity at issue. While the nature of the public library would clearly not be compatible with many forms of expressive activity, such as giving speeches or holding rallies, we find that it is compatible with the expressive activity at issue here, the receipt and communication of information through the Internet. Indeed, this expressive activity is explicitly offered by the library.

All three of these factors indicate that the Loudoun County libraries are limited public fora and, therefore, that defendant must "permit the public to exercise rights that are consistent with the nature of the Library and consistent with the government's intent in designating the Library as a public forum." The receipt and communication of information through the Internet is consistent with both.

Because the Policy at issue limits the receipt and communication of information through the Internet based on the content of that information, it is subject to a strict scrutiny analysis and will only survive if it is "necessary to serve a compelling state interest and ... is narrowly drawn to achieve that end."

C. Renton/Time, Place, and Manner

Defendant also argues in the alternative that the strict scrutiny standard should not apply because the Policy is more appropriately viewed as a time, place, and manner restriction pursuant to City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), than as a traditional content-based restriction on speech. Plaintiffs respond that this analysis is inapplicable to the Policy, which is designed to address the primary effects of Internet speech and which defendant admits restricts speech based on content.

In Renton, the Supreme Court found that a zoning ordinance prohibiting adult movie theaters from locating within 1000 feet of residential neighborhoods, churches, and specific other structures was a content-neutral time, place, and manner restriction because it could be justified without reference to the content of the speech in the theaters. The city justified the ordinance as necessary to address the secondary effects of adult theaters in certain neighborhoods, namely preventing crime, protecting retail trade, maintaining property values, and preserving the quality of the neighborhoods, districts, and life. The Court found that none of these secondary effects were related to the content of the movies shown at the theaters. Therefore, the Court found the ordinance to be constitutional.

In a subsequent decision clarifying what it meant by "secondary effects," the Supreme Court held that "regulations that focus on ... listeners' reactions to speech are not the type of 'secondary effects' we referred to in Renton." More recently, in construing the Communications Decency Act, the Court stated that "content-based blanket restrictions on speech ... cannot be 'properly analyzed as a form of time, place, and manner regulation'"

Defendant contends that the Policy is designed to combat two secondary effects: creating a sexually hostile environment and violating obscenity, child pornography, and harm to juveniles laws. Neither of these are secondary effects and neither can be justified without reference to the content of the speech at issue. The defendant's concern that without installing filtering software, Internet viewing might lead to a sexually hostile environment is solely focused on the reaction of the audience to a certain category of speech. As the Supreme Court noted ..., this is not a secondary effect. The defendant's second concern is the possible violation of various criminal statutes that address materials deemed to be obscene, involve child pornography, or are harmful to juveniles. These criminal statutes define prohibited speech only by and because of its content. Far from addressing secondary effects of speech, these statutes focus on the very speech itself.

Indeed, the Fourth Circuit has recently observed that content-neutrality is a prerequisite to the constitutionality of time, place, and manner restrictions on expressive conduct on public grounds. Therefore, defendant's admission that the Policy discriminates against speech based on content indicates that it would not be constitutional even if it were a time, place, and manner restriction.

IV. Constitutionality of the Policy

Defendant contends that even if we conclude that strict scrutiny is the appropriate standard of review, the Policy is constitutional because it is the least restrictive means to achieve two compelling government interests: "1) minimizing access to illegal pornography; and 2) avoidance of creation of a sexually hostile environment...." Plaintiffs and intervenors respond that there is no evidence that the Policy is necessary to further these interests nor that it is the least restrictive means available. Moreover, they argue that the Policy imposes an unconstitutional prior restraint on speech.

A content-based limitation on speech will be upheld only where the state demonstrates that the limitation "is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end." This test involves three distinct inquiries: (1) whether the interests asserted by the state are compelling; (2) whether the limitation is necessary to further those interests; and (3) whether the limitation is narrowly drawn to achieve those interests.

A. Whether the Defendant's Interests Are Compelling

Defendant argues that both of its asserted interests are compelling. Although plaintiffs and intervenors argue that these interests were not really the motivating factors behind the Policy and that they are not furthered by the Policy, they do not argue that the interests themselves are not compelling. For the purposes of this analysis, therefore, we assume that minimizing access to illegal pornography and avoidance of creation of a sexually hostile environment are compelling government interests.

B. Whether the Policy is Necessary to Further Those Interests

To satisfy strict scrutiny, defendant must do more than demonstrate that it has a compelling interest; it must also demonstrate that the Policy is necessary to further that interest. In other words, defendant must demonstrate that in the absence of the Policy, a sexually hostile environment might exist and/or there would be a problem with individuals accessing child pornography or obscenity or minors accessing materials that are illegal as to them. Defendant "must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way." The defendant bears this burden because "the interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship."

The only evidence to which defendant can point in support of its argument that the Policy is necessary consists of a record of a single complaint arising from Internet use in another Virginia library and reports of isolated incidents in three other libraries across the country.

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As a matter of law, we find this evidence insufficient to sustain defendant's burden of showing that the Policy is reasonably necessary. No reasonable trier of fact could conclude that three isolated incidents nationally, one very minor isolated incident in Virginia, no evidence whatsoever of problems in Loudoun County, and not a single employee complaint from anywhere in the country establish that the Policy is necessary to prevent sexual harassment or access to obscenity or child pornography.

C. Whether the Policy Is Narrowly Tailored to Achieve the Compelling Government Interests

Even if defendant could demonstrate that the Policy was reasonably necessary to further compelling state interests, it would still have to show that the Policy is narrowly tailored to achieve those interests. The parties disagree about several issues relating to whether the Policy is narrowly tailored: (1) whether less restrictive means are available; (2) whether the Policy is overinclusive; and (3) whether X-Stop, the filtering software used by defendant, is the least restrictive filtering software available.

1. Whether Less Restrictive Means Are Available

Defendant alleges that the Policy is constitutional because it is the least restrictive means available to achieve its interests. The only alternative to filtering, defendant contends, is to have librarians directly monitor what patrons view. Defendant asserts this system would be far more intrusive than using filtering software. Plaintiffs and intervenors respond that there are many less restrictive means available, including designing an acceptable use policy, using privacy screens, using filters that can be turned off for adult use, changing the location of Internet terminals, educating patrons on Internet use, placing time limits on use, and enforcing criminal laws when violations occur.

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We find that the Policy is not narrowly tailored because less restrictive means are available to further defendant's interests and there is no evidence that defendant has tested any of these means over time. First, the installation of privacy screens is a much less restrictive alternative that would further defendant's interest in preventing the development of a sexually hostile environment. Second, there is undisputed evidence in the record that charging library staff with casual monitoring of Internet use is neither extremely intrusive nor a change from other library policies. Third, filtering software could be installed on only some Internet terminals and minors could be limited to using those terminals. Alternately, the library could install filtering software that could be turned off when an adult is using the terminal. While we find that all of these alternatives are less restrictive than the Policy, we do not find that any of them would necessarily be constitutional if implemented. That question is not before us.

2. Whether the Policy Is Overinclusive

Defendant contends that the Policy is neither overinclusive nor underinclusive because it is the least restrictive means available.

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In examining the specific Policy before us, we find it overinclusive because, on its face, it limits the access of all patrons, adult and juvenile, to material deemed fit for juveniles. It is undisputed that the Policy requires that "if the Library Director considers a particular website to violate ... [the Virginia Harmful to Juveniles Statute], the website should be blocked under the policy for adult as well as juvenile patrons." It has long been a matter of settled law that restricting what adults may read to a level appropriate for minors is a violation of the free speech guaranteed by the First Amendment and the Due Process Clause of the Fourteenth Amendment.

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Because we have found that less restrictive alternatives are available to defendant and that defendant has not sufficiently tried to employ any of them, the Policy's limitation of adult access to constitutionally protected materials cannot survive strict scrutiny.

3. Whether X-Stop Is the Least Restrictive Filtering Software

Defendant claims that X-Stop is the least restrictive filtering software currently available and, therefore, the Policy is narrowly tailored as applied. Our finding that the Policy is unconstitutional on its face makes this argument moot. A facially overbroad government policy may nevertheless be saved if a court is able to construe government actions under that policy narrowly along the lines of their implementation, if the policy's text or other sources of government intent demonstrate "a clear line" to draw. We find no such clear line here. Defendant has asserted an unconditional right to filter the Internet access it provides to its patrons and there is no evidence in the record that it has applied the Policy in a less restrictive way than it is written. Therefore, our finding that the Policy is unconstitutional on its face makes any consideration of the operation of X-Stop moot.

V. Prior Restraint

Plaintiffs and intervenors allege that even if the Policy were to survive strict scrutiny analysis, the Court would have to find it unconstitutional under the doctrine of prior restraint because it provides neither sufficient standards to limit the discretion of the decisionmaker nor adequate procedural safeguards. Defendant responds that the Policy is not a prior restraint because it only prohibits viewing certain sites in Loudoun County public libraries, and not in the whole of Loudoun County.

Preventing prior restraints of speech is an essential component of the First Amendment's free speech guarantee. "Permitting government officials unbridled discretion in determining whether to allow protected speech presents an unacceptable risk of both indefinitely suppressing and chilling protected speech." 11126 Baltimore Boulevard, Inc. v. Prince George's County, 58 F.3d 988, 994 (4th Cir. 1995). In 11126, the Fourth Circuit found that

the guarantee of freedom of speech afforded by the First Amendment is abridged whenever the government makes the enjoyment of protected speech contingent upon obtaining permission from government officials to engage in its exercise under circumstances that permit government officials unfettered discretion to grant or deny the permission.... Such discretion exists when a regulation creating a prior restraint on speech fails to impose adequate standards for officials to apply in rendering a decision to grant or deny permission or when a regulation fails to impose procedural safeguards to ensure a sufficiently prompt decision.

[The following procedural safeguards have been required by the Supreme Court:] "(1) any restraint prior to judicial review can be imposed only for a specific brief period during which the status quo must be maintained; (2) expeditious judicial review of that decision must be available; and (3) the censor must bear the burden of going to court to suppress the speech and must bear the burden of proof once in court."

In other words, even unprotected speech cannot be censored by administrative determination absent sufficient standards and adequate procedural safeguards.

Defendant argues that prior restraint cases are limited to situations in which a government tries to restrict all speech within its jurisdiction. Because Loudoun County residents are still permitted to obtain unfiltered Internet access in their homes or offices, defendant asserts, this situation is distinguishable from those cases. We find no legal support for this argument. In Southeastern Promotions [v. Conrad], 420 U.S. 546, a municipality had denied the use of a public facility for the production of the musical "Hair," which it deemed obscene. The Court found that "it does not matter ... that the board's decision might not have had the effect of total suppression of the musical in the community. Denying use of the municipal facility under the circumstances present here constituted the prior restraint."

It is undisputed that the Policy lacks any provision for prior judicial determinations before material is censored. We find that the Policy includes neither sufficient standards nor adequate procedural safeguards. As to the first issue, the defendant's discretion to censor is essentially unbounded. The Policy itself speaks only in the broadest terms about child pornography, obscenity, and material deemed harmful to juveniles and fails to include any guidelines whatsoever to help librarians determine what falls within these broad categories. There are no standards by which a reviewing authority can determine if the decisions made were appropriate.

The degree to which the Policy is completely lacking in standards is demonstrated by the defendant's willingness to entrust all preliminary blocking decisions - and, by default, the overwhelming majority of final decisions - to a private vendor, Log-On Data Corp. Although the defendant argues that X-Stop is the best available filter, a defendant cannot avoid its constitutional obligation by contracting out its decisionmaking to a private entity. Such abdication of its obligation is made even worse by the undisputed facts here. Specifically, defendant concedes that it does not know the criteria by which Log-On Data makes its blocking decisions. It is also undisputed that Log-On Data does not base its blocking decisions on any legal definition of obscenity or even on the parameters of defendant's Policy. Thus, on this record, we find that the defendant has not satisfied the first prong of prior restraint analysis, establishing adequate standards.

In addition, the Policy also fails to include adequate procedural safeguards. The three minimum procedural safeguards required are (1) a specific brief time period of imposition before judicial review; (2) expeditious judicial review; and (3) the censor bearing the burden of proof. The Policy, even including the alleged protections of the unofficial 'unblocking policy,' is inadequate in each of these respects. First, the Policy itself contains no provision for administrative review, no time period in which any review must be completed, and no provision for judicial review. Under the unofficial 'unblocking policy,' a library patron who finds herself blocked from an Internet site she believes contains protected speech is required to request in writing that the librarians unblock the specified site. If the librarian determines that the site does not fall within the Policy's prohibitions, he will unblock it, although there is no systematic way in which this is done. There is no time period during which this review must occur and there is no provision for notifying the requesting patron if and when a site has been unblocked.

The second required procedural safeguard is expeditious judicial review after the administrative decision is made. There is no provision whatsoever in the Policy for judicial review of any blocks. This makes the question of who carries the burden of proof in any judicial review proceeding, the third required procedural safeguard, moot. Because the Policy has neither adequate standards nor adequate procedural safeguards, we find it to be an unconstitutional prior restraint. * * *

Although defendant is under no obligation to provide Internet access to its patrons, it has chosen to do so and is therefore restricted by the First Amendment in the limitations it is allowed to place on patron access. Defendant has asserted a broad right to censor the expressive activity of the receipt and communication of information through the Internet with a Policy that (1) is not necessary to further any compelling government interest; (2) is not narrowly tailored; (3) restricts the access of adult patrons to protected material just because the material is unfit for minors; (4) provides inadequate standards for restricting access; and (5) provides inadequate procedural safeguards to ensure prompt judicial review. Such a policy offends the guarantee of free speech in the First Amendment and is, therefore, unconstitutional.

Notes to Reading 3

1. While the Court found that the Loudoun County Public Library was a limited public forum, it did not speak to whether the Internet itself was a public forum. Can we infer that status from Reno v. ACLU? Does it matter? Here's what Professor Steven Gey had to say about it:

In light of the strong pro-speech language in Reno, there seems little to add in the way of constitutional protection for the Internet. Yet despite its repeated inferences and allusions to public forum principles and precedents, the Court did not definitively assert that the Internet will henceforth be treated as a public forum. This is significant because the Reno majority opinion left open at least the theoretical possibility that it might uphold content-based regulations of the Internet that were narrower than the CDA, and the separate opinion of Justice O'Connor specifically endorsed the notion that the government could constitutionally "zone" low-value speech within the Internet once the technology to do so becomes available. These options, although less comprehensively restrictive than the CDA, would nevertheless pose the same type of threat to the anarchic freedom of the Internet that the Reno majority seems intent on preserving. Also ... the Reno decision does not address regulation of speech outside the sexual arena, where protection of children gives the government a justification that does not apply to other types of expressive content. Finally, Reno provides little guidance for dealing with government efforts to regulate the expression of citizens using government facilities to access the Internet, a problem that has already arisen several times in the context of public universities and libraries.

Steven Gey, Reopening the Public Forum-From Sidewalks to Cyberspace, 58 Ohio St. L.J. 1535, 1617 (1998). Professor Gey believes that treating the Internet as a public forum - recast to limit regulation to speech that would otherwise significantly interfere with government functions - could avoid these dangers. Id. at 1634.

2. Assess the constitutionality of the "less restrictive" practices identified by Judge Brinkema: (a) privacy screens, (b) casual staff monitoring, (c) providing unfiltered terminals for adults. Are these really "less restrictive alternatives" for purposes of strict scrutiny analysis if they, too, are unconstitutional? Should Judge Brinkema have held one way or the other?

3. Legislation requiring filtering software in libraries receiving federal funds for Internet connections (S.97, H.R.896) was pending as this module was being written. Constitutional? Professor Gey's article might shed some light on this issue, too.

4. Prior restraint doctrine is arguably the most powerful of all First Amendment protections. Once a litigant succeeds in characterizing a government regulation as a prior restraint, that regulation has little chance of survival. That is just what happened when the 9th Circuit was required to review a regulation barring Professor Daniel Bernstein from posting the source code for his encryption software on the Internet or otherwise making it available overseas.

Bernstein v. U.S. Department of Justice

No. 97-16686 (9th Cir. May 6, 1999)

B. Fletcher, Circuit Judge:

The government defendants appeal the grant of summary judgment to the plaintiff, Professor Daniel J. Bernstein, enjoining the enforcement of certain Export Administration Regulations (EAR) that limit Bernstein's ability to distribute encryption software. We find that the EAR regulations (1) operate as a prepublication licensing scheme that burdens scientific expression, (2) vest boundless discretion in government officials, and (3) lack adequate procedural safeguards. Consequently, we hold that the challenged regulations constitute a prior restraint on speech that offends the First Amendment. Although we employ a somewhat narrower rationale than did the district court, its judgment is accordingly affirmed.


A. Facts and Procedural History

Bernstein is currently a professor in the Department of Mathematics, Statistics, and Computer Science at the University of Illinois at Chicago. As a doctoral candidate at the University of California, Berkeley, he developed an encryption method - "a zero-delay private-key stream encryptor based upon a one-way hash function" - that he dubbed "Snuffle." Bernstein described his method in two ways: in a paper containing analysis and mathematical equations (the Paper) and in two computer programs written in "C," a high-level computer programming language (Source Code). Bernstein later wrote a set of instructions in English (the Instructions) explaining how to program a computer to encrypt and decrypt data utilizing a one-way hash function, essentially translating verbatim his Source Code into prose form.

Seeking to present his work on Snuffle within the academic and scientific communities, Bernstein asked the State Department whether he needed a license to publish Snuffle in any of its various forms. The State Department responded that Snuffle was a munition under the International Traffic in Arms Regulations (ITAR), and that Bernstein would need a license to "export" the Paper, the Source Code, or the Instructions. There followed a protracted and unproductive series of letter communications between Bernstein and the government, wherein Bernstein unsuccessfully attempted to determine the scope and application of the export regulations to Snuffle.

Bernstein ultimately filed this action, challenging the constitutionality of the ITAR regulations. The district court found that the Source Code was speech protected by the First Amendment, ... and subsequently granted summary judgment to Bernstein on his First Amendment claims, holding the challenged ITAR regulations facially invalid as a prior restraint on speech....

In December 1996, President Clinton shifted licensing authority for nonmilitary encryption commodities and technologies from the State Department to the Department of Commerce. The Department of Commerce then promulgated regulations under the EAR to govern the export of encryption technology, regulations administered by the Bureau of Export Administration (BXA). Bernstein subsequently amended his complaint to add the Department of Commerce as a defendant, advancing the same constitutional objections as he had against the State Department. The district court, following the rationale of its earlier Bernstein opinions, once again granted summary judgment in favor of Bernstein, finding the new EAR regulations facially invalid as a prior restraint on speech. The district court enjoined the Commerce Department from future enforcement of the invalidated provisions, an injunction that has been stayed pending this appeal.

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I. Prior Restraint

The parties and amici urge a number of theories on us. We limit our attention here, for the most part, to only one: whether the EAR restrictions on the export of encryption software in source code form constitute a prior restraint in violation of the First Amendment. We review de novo the district court's affirmative answer to this question.

It is axiomatic that "prior restraints on speech and publication are the most serious and least tolerable infringement on First Amendment rights." Indeed, the Supreme Court has opined that "it is the chief purpose of the [First Amendment] guaranty to prevent previous restraints upon publication." Accordingly, "[a]ny prior restraint on expression comes ... with a 'heavy presumption' against its constitutional validity." At the same time, the Supreme Court has cautioned that "[t]he phrase 'prior restraint' is not a self-wielding sword. Nor can it serve as a talismanic test." We accordingly turn from "[t]he generalization that prior restraint is particularly obnoxious" to a "more particularistic analysis."

The Supreme Court has treated licensing schemes that act as prior restraints on speech with suspicion because such restraints run the twin risks of encouraging self-censorship and concealing illegitimate abuses of censorial power. As a result, "even if the government may constitutionally impose content-neutral prohibitions on a particular manner of speech, it may not condition that speech on obtaining a license or permit from a government official in that official's boundless discretion." We follow the lead of the Supreme Court and divide the appropriate analysis into two parts. The threshold question is whether Bernstein is entitled to bring a facial challenge against the EAR regulations. If he is so entitled, we proceed to the second question: whether the regulations constitute an impermissible prior restraint on speech.

A. Is Bernstein entitled to bring a facial attack?

A licensing regime is always subject to facial challenge as a prior restraint where it "gives a government official or agency substantial power to discriminate based on the content or viewpoint of speech by suppressing disfavored speech or disliked speakers," and has "a close enough nexus to expression, or to conduct commonly associated with expression, to pose a real and substantial threat of ... censorship risks."

The EAR regulations at issue plainly satisfy the first requirement - "the determination of who may speak and who may not is left to the unbridled discretion of a government official." BXA administrators are empowered to deny licenses whenever export might be inconsistent with "U.S. national security and foreign policy interests." No more specific guidance is provided. Obviously, this constraint on official discretion is little better than no constraint at all. The government's assurances that BXA administrators will not, in fact, discriminate on the basis of content are beside the point. After all, "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."

The more difficult issue arises in relation to the second requirement - that the challenged regulations exhibit "a close enough nexus to expression." We are called on to determine whether encryption source code is expression for First Amendment purposes.(1)

We begin by explaining what source code is. "Source code," at least as currently understood by computer programmers, refers to the text of a program written in a "high-level" programming language, such as "PASCAL" or "C." The distinguishing feature of source code is that it is meant to be read and understood by humans and that it can be used to express an idea or a method. A computer, in fact, can make no direct use of source code until it has been translated (compiled) into a "low-level" or "machine" language, resulting in computer-executable "object code." That source code is meant for human eyes and understanding, however, does not mean that an untutored layperson can understand it. Because source code is destined for the maw of an automated, ruthlessly literal translator - the compiler - a programmer must follow stringent grammatical, syntactical, formatting, and punctuation conventions. As a result, only those trained in programming can easily understand source code.

Also important for our purposes is an understanding of how source code is used in the field of cryptography. Bernstein has submitted numerous declarations from cryptographers and computer programmers explaining that cryptographic ideas and algorithms are conveniently expressed in source code.

That this should be so is, on reflection, not surprising. As noted earlier, the chief task for cryptographers is the development of secure methods of encryption. While the articulation of such a system in layman's English or in general mathematical terms may be useful, the devil is, at least for cryptographers, often in the algorithmic details. By utilizing source code, a cryptographer can express algorithmic ideas with precision and methodological rigor that is otherwise difficult to achieve. This has the added benefit of facilitating peer review - by compiling the source code, a cryptographer can create a working model subject to rigorous security tests. The need for precisely articulated hypotheses and formal empirical testing, of course, is not unique to the science of cryptography; it appears, however, that in this field, source code is the preferred means to these ends.

Thus, cryptographers use source code to express their scientific ideas in much the same way that mathematicians use equations or economists use graphs. Of course, both mathematical equations and graphs are used in other fields for many purposes, not all of which are expressive. But mathematicians and economists have adopted these modes of expression in order to facilitate the precise and rigorous expression of complex scientific ideas. Similarly, the undisputed record here makes it clear that cryptographers utilize source code in the same fashion.

In light of these considerations, we conclude that encryption software, in its source code form and as employed by those in the field of cryptography, must be viewed as expressive for First Amendment purposes, and thus is entitled to the protections of the prior restraint doctrine. If the government required that mathematicians obtain a prepublication license prior to publishing material that included mathematical equations, we have no doubt that such a regime would be subject to scrutiny as a prior restraint. The availability of alternate means of expression, moreover, does not diminish the censorial power of such a restraint - that Adam Smith wrote Wealth of Nations without resorting to equations or graphs surely would not justify governmental prepublication review of economics literature that contain these modes of expression.

The government, in fact, does not seriously dispute that source code is used by cryptographers for expressive purposes. Rather, the government maintains that source code is different from other forms of expression (such as blueprints, recipes, and "how-to" manuals) because it can be used to control directly the operation of a computer without conveying information to the user. In the government's view, by targeting this unique functional aspect of source code, rather than the content of the ideas that may be expressed therein, the export regulations manage to skirt entirely the concerns of the First Amendment. This argument is flawed for at least two reasons.

First, it is not at all obvious that the government's view reflects a proper understanding of source code. As noted earlier, the distinguishing feature of source code is that it is meant to be read and understood by humans, and that it cannot be used to control directly the functioning of a computer. While source code, when properly prepared, can be easily compiled into object code by a user, ignoring the distinction between source and object code obscures the important fact that source code is not meant solely for the computer, but is rather written in a language intended also for human analysis and understanding.

Second, and more importantly, the government's argument, distilled to its essence, suggests that even one drop of "direct functionality" overwhelms any constitutional protections that expression might otherwise enjoy. This cannot be so. The distinction urged on us by the government would prove too much in this era of rapidly evolving computer capabilities. The fact that computers will soon be able to respond directly to spoken commands, for example, should not confer on the government the unfettered power to impose prior restraints on speech in an effort to control its "functional" aspects. The First Amendment is concerned with expression, and we reject the notion that the admixture of functionality necessarily puts expression beyond the protections of the Constitution.

The government also contends that the challenged regulations are immune from prior restraint analysis because they are "laws of general application" rather than being "directed narrowly and specifically at expression." We cannot agree. Because we conclude that source code is utilized by those in the cryptography field as a means of expression, and because the regulations apply to encryption source code, it necessarily follows that the regulations burden a particular form of expression directly.

The Supreme Court in Lakewood [v. Plain Dealer Publishing Co., 486 U.S. 750 (1988)] explored what it means to be a "law of general application" for prior restraint purposes. In that case, the Court cited a law requiring building permits as a "law of general application" that would not be subject to a facial attack as a prior restraint, reasoning that such a law carried "little danger of censorship," even if it could be used to retaliate against a disfavored newspaper seeking to build a printing plant. In the Court's view, "such laws provide too blunt a censorship instrument to warrant judicial intervention prior to an allegation of actual misuse." Unlike a building permit ordinance, which would afford government officials only intermittent and unpredictable opportunities to exercise unrestrained discretion over expression, the challenged EAR regulations explicitly apply to expression and place scientific expression under the censor's eye on a regular basis. In fact, there is ample evidence in the record establishing that some in the cryptography field have already begun censoring themselves, for fear that their statements might influence the disposition of future licensing applications. In these circumstances, we cannot conclude that the export control regime at issue is a "law of general application" immune from prior restraint analysis.(2)

Because the prepublication licensing scheme challenged here vests unbridled discretion in government officials, and because it directly jeopardizes scientific expression, we are satisfied that Bernstein may properly bring a facial challenge against the regulations. We accordingly turn to the merits.

B. Are the regulations an impermissible prior restraint?

"[T]he protection even as to previous restraint is not absolutely unlimited." The Supreme Court has suggested that the "heavy presumption" against prior restraints may be overcome where official discretion is bounded by stringent procedural safeguards. As our analysis above suggests, the challenged regulations do not qualify for this First Amendment safe harbor.(3)

In Freedman v. Maryland, the Supreme Court set out three factors for determining the validity of licensing schemes that impose a prior restraint on speech: (1) any restraint must be for a specified brief period of time; (2) there must be expeditious judicial review; and (3) the censor must bear the burden of going to court to suppress the speech in question and must bear the burden of proof. The district court found that the procedural protections provided by the EAR regulations are "woefully inadequate" when measured against these requirements. We agree.

Although the regulations require that license applications be resolved or referred to the President within 90 days, there is no time limit once an application is referred to the President. Thus, the 90-day limit can be rendered meaningless by referral. Moreover, if the license application is denied, no firm time limit governs the internal appeals process. Accordingly, the EAR regulations do not satisfy the first Freedman requirement that a licensing decision be made within a reasonably short, specified period of time. The EAR regulatory regime further offends Freedman's procedural requirements insofar as it denies a disappointed applicant the opportunity for judicial review.

We conclude that the challenged regulations allow the government to restrain speech indefinitely with no clear criteria for review. As a result, Bernstein and other scientists have been effectively chilled from engaging in valuable scientific expression. Bernstein's experience itself demonstrates the enormous uncertainty that exists over the scope of the regulations and the potential for the chilling of scientific expression. In short, because the challenged regulations grant boundless discretion to government officials, and because they lack the required procedural protections set forth in Freedman, we find that they operate as an unconstitutional prior restraint on speech.

C. Concluding comments.

We emphasize the narrowness of our First Amendment holding. We do not hold that all software is expressive. Much of it surely is not. Nor need we resolve whether the challenged regulations constitute content-based restrictions, subject to the strictest constitutional scrutiny, or whether they are, instead, content-neutral restrictions meriting less exacting scrutiny. We hold merely that because the prepublication licensing regime challenged here applies directly to scientific expression, vests boundless discretion in government officials, and lacks adequate procedural safeguards, it constitutes an impermissible prior restraint on speech.

We will, however, comment on two issues that are entwined with the underlying merits of Bernstein's constitutional claims. First, we note that insofar as the EAR 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. In this regard, the EAR regulations are very different from content-neutral time, place and manner restrictions that may have an incidental effect on expression while aiming at secondary effects.

Second, we note that the government's efforts to regulate and control the spread of knowledge relating to encryption may implicate more than the First Amendment rights of cryptographers. 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 urveilled 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, the right against compelled speech, and the right to informational privacy. While we leave for another day the resolution of these difficult issues, it is important to point out that Bernstein's is a suit not merely concerning a small group of scientists laboring in an esoteric field, but also touches on the public interest broadly defined.

* * *


Because the prepublication licensing regime challenged by Bernstein applies directly to scientific expression, vests boundless discretion in government officials, and lacks adequate procedural safeguards, we hold that it constitutes an impermissible prior restraint on speech. We decline the invitation to line edit the regulations in an attempt to rescue them from constitutional infirmity, and thus endorse the declaratory relief granted by the district court.



1. As an initial matter, we note that the fact that the regulations reach only "exports" does not reduce the burden on Bernstein's First Amendment rights. It is Bernstein's right to speak, not the rights of foreign listeners to hear, that we are concerned with here. The government does not argue, nor could it, that being cut off from a foreign audience, as distinguished from a domestic one, does not implicate First Amendment concerns. In addition, because the regulations define "export" to include the use of internet fora that may be accessible by foreign nationals, as well as domestic communications with foreign nationals, we think it plain that the regulations potentially limit Bernstein's freedom of speech in a variety of both domestic and foreign contexts.

2. The government also argues that the EAR regulations are "laws of general application" because they are not purposefully aimed at suppressing any particular ideas that may be expressed in source code. With respect to this contention, the panel (including the dissenter) agree that the purpose of the regulations is irrelevant to prior restraint analysis. It is clear that a prior restraint analysis applies equally to content-neutral or content-based enactments. Indeed, where unbridled discretion is vested in a governmental official, it is difficult to know whether a licensing regime is content-based or content-neutral. Accordingly, the government's purpose in censoring encryption source code is, at this stage of our First Amendment inquiry, beside the point. In other words, a prepublication licensing regime that has a chilling and censorial effect on expression is properly subject to facial attack as a prior restraint, whatever the purpose behind its enactment.

3. The Supreme Court has also suggested that the presumption against prior restraints may be overcome where publication would directly and imminently imperil national security. In order to justify a prior restraint on national security grounds, the government must prove the publication would "surely result in direct, immediate, and irreparable damage to our Nation or its people." The government does not argue that the prior restraint at issue here falls within the extremely narrow class of cases where publication would directly and immediately imperil national security.

5. Are you persuaded by Judge Betty Fletcher's conclusion that Bernstein's source code constituted speech for First Amendment purposes? The dissenter in this case, Judge T.G. Nelson, strongly disagreed and cited a district court opinion that reached the opposite conclusion. See Junger v. Daley, 8 F. Supp.2d 708 (N.D. Ohio 1998). Did you change your mind?

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