At 10:44 PM 9/22/96 -0700, John Gilmore wrote: [snip]
The wording there is taken directly from the controlling Supreme Court case, which I believe is the Pentagon Papers case.
I double-checked, and it is Potter Stewart from that case. Here's the whole paragraph: "But in the cases before us, we are asked neither to construe specific regulations nor to apply specific laws. We are asked, instead, to perform a function that the Constitution gave to the Executive, not the Judiciary. We are asked, quite simply, to prevent the publication by two newspapers of material that the Executive Branch insists should not, in the national interest, bepublished. I am convinced that the Executive is correct with respect to some of the documents involved. But I cannot say that disclosure of any of them will surely result in direct, immediate, and irreparable damage to our Nation or its people. That being so, there can under the First Amendment be but one judicial resolution of the issues before us. I join the judgments of the Court." Interestingly, Stewart says earlier: "I should suppose that moral, political, and practical considerations would dictate that a very first principle of that wisdom would be an insistence upon avoiding secrecy for its own sake. For when everything is classified, then nothing is classified, and the system becomes one to be disregarded by the cynical or the careless, and to be manipulated by those intent on self-protection or self-promotion. I should suppose, in short, that the hallmark of a truly effective internal security system would be the maximum possible disclosure, recognizing that secrecy can best be preserved only when credibility is truly maintained." http://www.nfoweb.com/folio.pgi/ussc-1/query=[field+case+name!3A!22new+york+ times!22]/doc/{@461998}/hit_headings?
The example used in that case was the departure date and route of a ship carrying US troops to war. The government could sue people who threatened to publish such information, prior to publication, and have some chance of winning the case. It's not a guarantee, just a pre-qualification. The idea is that if they CAN'T show such a danger, they have NO chance of winning.
This is the beauty of Patel's earlier ruling. The fact that we are possibly talking about speech places a much stronger burden on the gov to restrict it. [snip]
The Supreme Court would ignore the prior restraint line issue anyway, because it isn't a factor in this case. The government isn't arguing that they have the right to prior-restrain us because of direct, immediate and irreperable damage. Instead they argue that the publication itself is being controlled only for its function, not for the content of the publication, and therefore in controlling the function, they can "incidentally" control the publication. [snip]
Anyone who was at the hearing on Friday heard some form of the word "function" repeated many times. This definitely seems to be the heart of the gov's argument. I think it's not gonna float, but IANAL, either :) Rich ______________________________________________________________________ Rich Burroughs richieb@teleport.com http://www.teleport.com/~richieb See my Blue Ribbon Page at http://www.teleport.com/~richieb/blueribbon U.S. State Censorship Page at - http://www.teleport.com/~richieb/state New EF zine "cause for alarm" - http://www.teleport.com/~richieb/cause