Bernstein v. United States Department of Justice: A cryptic interpretation of speech

Brigham Young University Law Review, 2000 by Hanson, Seth

I. INTRODUCTION

Freedom of speech is essential to the preservation of free institutions and individual dignity. Without the debate inherent in a liberal society, power coalesces around uncontested leadership, demagoguery replaces persuasion, and coercion supplants free exercise of conscience. The mere threat of such events engenders zealous protection of free speech in America. Even after 230 years, modern Americans have not forgotten the outrage kindled by the Stamp Act's clumsy suppression of speech.l Nevertheless, despite fervent protection of speech, even the most ardent advocate will concede the need for limits on activity protected under the First Amendment.

Certainly civilized society cannot endure the gamut of human activity and still retain a healthy balance between order and freedom. If all behavior were protected speech, the resulting anarchy would inevitably destroy society and the protections it affords individuals. At a rudimentary level, only that activity which is genuinely expressive and does not violate others' protected rights qualifies for free speech protection. Successful protection of speech must balance the coexistent and interdependent needs for order and freedom. If a standard of speech protection is overly burdensome (as was the Stamp Act), then individuals suffer and may react violently. If a standard of speech is overly concerned with freedom, then freedom itself is in peril to the degree it is dependent on an ordered society. Determining the proper balance between social order and individual freedom is not a precise science, especially in a rapidly changing society.

Recent technological advances have forced society to reevaluate its standard of free speech. Among the many changes it has brought to society, the computer revolution has compelled the courts to determine whether or not encryption source code qualifies for First Amendment free speech protection. An encryption program is a computer program capable of scrambling and deciphering information. Computer operators using the same encryption program can prevent unintended parties from accessing sensitive information. As with other computer programs, encryption programs are written in source code, using computer languages such as C or Cobalt. A program's source code must be "compiled" or translated into object code, a series of ones and zeroes, before it can actually operate a computer.

A determination that encryption source code is or is not protected speech involves complex policy decisions in a burgeoning computer culture and forces us to ascertain how the first principles of free speech will best be furthered. In the pivotal case Bernstein r. United States Department of Justice,2 the Ninth Circuit decided that encryption source code is protected free speech. This Note will focus on why encryption source code is not speech within the purview of the First Amendment and will advance a test distinguishing activity that is primarily expressive from activity that is primarily functional.3 This test would protect only activity that is primarily expressive. Part ILA explores the major purposes of free speech protection, Part ILB reviews relevant Supreme Court precedent defining the contours of free speech protection, and Part ILC presents pre-Bernstein cases dealing with speech protection for encryption source code. Part III presents the facts and reasoning of the principal case. Part IV argues that the Bernstein decision is inconsistent with established free speech precedent and that a test distinguishing unprotected functional activity from protected expressive activity is more consonant with previous Supreme Court decisions and the underlying purposes of free speech. II. BACKGROUND

A. Purposes of Free Speech This Note is not intended to be a comprehensive authority on the multitudinous theories detailing the purposes of free speech. However, a general understanding of a major dichotomy in free speech theory will be useful in evaluating the benefits of the functional/expressive test advocated in this Note.

In academic circles, each free speech scholar seems to have his own categorization of free speech theory and theorists. For example, D.F.B. Tucker has identified two major groupings: ( 1 ) the "Functionalist Liberal Theories" which include the "Utilitarian Functionalism" theory (which includes theorists John Stuart Mill and Justice Brandeis), the "Indirect Utilitarianism" theory (which includes theorists David Lyons, Thomas Emerson, and Frederick Schauer) and the "Democratic Functionalism" theory (which includes theorist Alexander Meiklejohn); and (2) the "Deontological Liberal Theories" which include the "Lockean Liberalism" theory (which includes theorists John Locke, Hugo Black, and Chief Justice Burger), and the "Rawlsian Alternative" theory (which includes theorists John Rawls, Thomas Scanlon, and Ronald Dworkin).4 On the other hand, David A.J. Richards has identified the "Utilitarian Models" (which include John Stuart Mill and Oliver Wendell Holmes), the "Perfectionist Models" (which include John Stuart Mill, Finnis, George, and Haksar), the "Argument from Democracy" theory (which includes John Hart Ely, Cass Sunstein, Owen Fiss, C. Edwin Baker, and Kent Greenawalt), and finally "The Toleration Model" (which Richards himself advocated).5 As one can see, each scholar has his own complicated method of classifying each theory and theorist. Because legal reasoning rests upon free speech theory, a general treatment of prevailing theories is in order. For the purposes of this Note, two general groups of prevailing theories will be referred to as the utilitarian theory and the libertarian theory. 1. The utilitarian theory: Free speech as a tool to advance democracy and exchange ideas In Roth v. United States,b Justice Brennan, writing for the Supreme Court, stated: "The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people."' Accordingly, speech is a utilitarian tool designed to promote democracy. John Stuart Mill, one of the best known proponents of the utilitarian theory, also described how a community injury is avoided when each individual is able to express his opinions freely: "[T]he peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation . . . ."8 Similarly, Walter Lippmann, the twentieth century pundit, observed: "The right to speak freely is one of the necessary means to the attainment of the truth. That, and not the subjective pleasure of utterance, is why freedom is a necessity in the good society."9 Alexander Meiklejohn, Robert Bork, Cass Sunstein, and Thomas Emerson have also advocated differing strands of utilitarian theory in support of free speech.ii The utilitarian view that free speech preserves and perfects democratic institutions has had great impact on twentieth century jurisprudence.ll