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

Brigham Young University Law Review, 2000 by Hanson, Seth

In cases involving "fighting words" and obscenity the courts have held that the minority does not have a right to expression. The Supreme Court has determined that "`fighting' words. . . are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality."1' Similarly, in Miller n. California the Supreme Court held that "obscene material is unprotected by the First Amendment."'8 The Court presented a test to determine obscenity: The basic guidelines for the trier of fact must be: (a) whether the "average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently of fensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.19 As one can observe, these are situations where the judiciary is sensitive to the majority will and limits the ability of individuals and minorities to speak freely. One area of Supreme Court case law has particular relevance to encryption source code. This line of precedent is often referred to as the "`speech-conduct' distinction" or the "expression-action dichotomy."zz In O'Brien v. United States, the Supreme Court stated: "We cannot accept the view that an apparently limitless variety of conduct can be labeled `speech' whenever the person engaging in the conduct intends thereby to express an idea."zl Under this reasoning, activity must reach a certain level of expressiveness before it will qualify as speech for First Amendment purposes. The Court reinforced this point in City of Dallas r. Stanglin when it stated: "It is possible to find some kernel of expression in almost every activity a person undertakes-for example, walking down the street or meeting one's friends at the shopping mall-but such a kernel is not sufficient to bring the activity within the protection of the First Amendment."zz Under the Court's analysis, activity peppered with elements of expression must reach a certain level of expressiveness before that activity will qualify for free speech protection. In another "speechconduct" case, Spence v. Washington, the Court found the activity at issue expressive enough to qualify as speech because it evinced "[a]n intent to convey a particularized message . . ., and in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it."23

Several principles emerge from the "speech-conduct" precedents. In order to qualify as speech: ( 1 ) there must be more than the actor's mere intent to communicate an idea;24 (2) the activity must contain more than a "kernel of expression;"25 and ( 3 ) the likelihood must be great that those who experience the message will understand it.26