Bernstein V. United States Department of Justice: A Cryptic Interpretation of Speech

By Hanson, Seth | Brigham Young University Law Review, January 1, 2000 | Go to article overview
Save to active project

Bernstein V. United States Department of Justice: A Cryptic Interpretation of Speech

Hanson, Seth, Brigham Young University Law Review


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.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
Loading One moment ...
Project items
Cite this article

Cited article

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited article

Bernstein V. United States Department of Justice: A Cryptic Interpretation of Speech


Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

While we understand printed pages are helpful to our users, this limitation is necessary to help protect our publishers' copyrighted material and prevent its unlawful distribution. We are sorry for any inconvenience.
Full screen

matching results for page

Cited passage

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.

Are you sure you want to delete this highlight?