Timothy C. May writes:
Oh? And will the First Amendment then be repealed?
"Congress shall make no law respecting the establishment of speech or prohibiting the free exercise thereof" seems rather clear: Congress cannot insist that a particular form of speech be used to the exclusion of others.
A ban on coding messages, speaking in languages unintelligible to wiretappers, etc., would quite clearly be thrown out on First Amendment grounds, from everything I know of the Supreme Court and its reasoning.
The Supremes can bypass the First Ammendment anytime they choose by simply mumbling something about "society's overwhelming interest in protecting itself." Indeed, the plethora of regulation against various forms of "bad" speech concerning children and their sexuality is the clearest example of this, with the Knox "clothed child porn" decision, and the recent Hatch nonsense making any suggestion of underage sexual activity illegal, regardless of whether underaged models were involved in its production. I expect textual material will be outlawed in a few years as well, as a "loophole" in the current laws, since real children no longer have to be associated with such material in order for it to be deemed harmful. Once that happens, a whole bunch of other things will probably be outlawed shortly thereafter, the criteria being that they are certainly as dangerous as an illicit copy of "Aunt Sue and the Horny Paperboy." Expect bombmaking instructions, anti-government tracts, cryptography, and most Loompanics books to be included here.
And so on. Banning unescrowed cryptography would result in the Mother of all Constitutional challenges, and would, I am sure, result in such a ban being declared unconstitutional. If throwing Alice in jail because she used a form of speech unacceptable to the rulers is not a violation of the First, nothing is.
The frog is nearly boiled. If the Mother of all Constitutional Challenges hasn't happened by now, it isn't going to. This is a country that throws grad students in prison for possessing films of young girls doing gymnastics. What makes you think unescrowed cryptography has some special hallowed status? The First Ammendment is useless, as there are clear counterexamples to unlimited free speech. That makes it a matter of interpretation, and the courts will interpret it according to the existing level of public hysteria. The Fourth Ammendment only guarantees us "due process." We do not, as some countries do, have a strong privacy provision written into our Constitution. I have always held that a well-written privacy provision keeping the government out of peoples homes and personal possessions is worth ten First Ammendments. -- Mike Duvos $ PGP 2.6 Public Key available $ mpd@netcom.com $ via Finger. $