Re: Bernstein hearing: The Press Release

At 10:24 PM 9/21/96 -0800, Jim Bell wrote:
>At 11:30 PM 9/21/96 -0400, Mark M. wrote:
>>I believe there is one section in the Constitution that says that speech
>>harmful to national security is not protected under the 1st amendment. 
>I can't think of what portion of the Constitution you're referring to.  But 
>chances are, somebody else will see this reference and comment.

The First Amendment does not contain the phrase "national security"
anywhere in it.  It does, however, begin with a rather explicit
"Congress shall make no law" which it applies to a bunch of things.
However, the body of the Constitution does say there should be a
Supreme Court, and the Supreme Court has (fairly reasonably) given itself
the job of deciding what's Constitutional and what's not.
The Supremes have, over the years, made a bunch of generally outrageous
decisions about what kinds of speech are protected by the First Amendment
and what kinds aren't, though their opinions have been gradually
improving since some of the really appalling ones earlier in the century.

By the way, alt.federal.judge.bork.bork.bork has recently come out with
a book in which he discusses issues like censorship.  He's in favor of it.

#			Thanks;  Bill
# Bill Stewart, +1-415-442-2215 stewarts@ix.netcom.com
# <A HREF="http://idiom.com/~wcs"> 	
# You can get PGP software outside the US at ftp.ox.ac.uk/pub/crypto

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On Sun, 22 Sep 1996, Bill Stewart wrote:

> The First Amendment does not contain the phrase "national security"
> anywhere in it.  It does, however, begin with a rather explicit
> "Congress shall make no law" which it applies to a bunch of things.
> However, the body of the Constitution does say there should be a
> Supreme Court, and the Supreme Court has (fairly reasonably) given itself
> the job of deciding what's Constitutional and what's not.
> The Supremes have, over the years, made a bunch of generally outrageous
> decisions about what kinds of speech are protected by the First Amendment
> and what kinds aren't, though their opinions have been gradually
> improving since some of the really appalling ones earlier in the century.

I did a little searching and couldn't find anything about a national security
exception in the Consitution.  It's already a stretch to claim that disclosure
of information vital to "nation security" is treason.  The Espionage Act, which
is so obviously unconstitutional, seems to make "harmful" speech illegal.

Mark
- -- 
PGP encrypted mail prefered.
Key fingerprint = d61734f2800486ae6f79bfeb70f95348
http://www.voicenet.com/~markm/

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On Sun, 22 Sep 1996, Mark M. wrote:

> -----BEGIN PGP SIGNED MESSAGE-----
> 
> On Sun, 22 Sep 1996, Bill Stewart wrote:
> 
> > The First Amendment does not contain the phrase "national security"
> > anywhere in it.  It does, however, begin with a rather explicit
> > "Congress shall make no law" which it applies to a bunch of things.
> > However, the body of the Constitution does say there should be a
> > Supreme Court, and the Supreme Court has (fairly reasonably) given itself
> > the job of deciding what's Constitutional and what's not.
> > The Supremes have, over the years, made a bunch of generally outrageous
> > decisions about what kinds of speech are protected by the First Amendment
> > and what kinds aren't, though their opinions have been gradually
> > improving since some of the really appalling ones earlier in the century.
> 
> I did a little searching and couldn't find anything about a national security
> exception in the Consitution.  It's already a stretch to claim that disclosure
> of information vital to "nation security" is treason.  The Espionage Act, which
> is so obviously unconstitutional, seems to make "harmful" speech illegal.


There isn't such a clause.  The allowed restrictions were developed in 
case law.

Constitutional literalists take note:  the First Amendment says nothing 
about what the executive branch or the states can do ....

EBD

> 
> Mark
> - -- 
> PGP encrypted mail prefered.
> Key fingerprint = d61734f2800486ae6f79bfeb70f95348
> http://www.voicenet.com/~markm/
> 
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>

Brian Davis <bdavis@thepoint.net>
[...]
>Constitutional literalists take note:  the First Amendment says nothing
>about what the executive branch or the states can do ....

The states are prohibited through the 14th Amendment via the
Slaughterhouse cases, the ability of the executive branch to
violate due process is questionable (from a legal viewpoint, not
a practical one...the President cannot order you placed in jail
unless you have broken a law which requires congress to have
made the law in the first place...)

jim

On Sun, 22 Sep 1996, Jim McCoy wrote:

> Brian Davis <bdavis@thepoint.net>
> [...]
> >Constitutional literalists take note:  the First Amendment says nothing
> >about what the executive branch or the states can do ....
Doesn't the doctrine of limited powers mean that they cannot do what is not
specified? (If I'm not mistaken, IANAL, etc...)
 
> The states are prohibited through the 14th Amendment via the
> Slaughterhouse cases, the ability of the executive branch to
> violate due process is questionable (from a legal viewpoint, not
> a practical one...the President cannot order you placed in jail
> unless you have broken a law which requires congress to have
> made the law in the first place...)

And the ITARs are only executive orders, no? Not laws, right? I'm curious 
as to why they're considered valid. Anyone know?

On Tue, 24 Sep 1996 s1113645@tesla.cc.uottawa.ca wrote:

> 
> 
> On Sun, 22 Sep 1996, Jim McCoy wrote:
> 
> > Brian Davis <bdavis@thepoint.net>
> > [...]
> > >Constitutional literalists take note:  the First Amendment says nothing
> > >about what the executive branch or the states can do ....
> Doesn't the doctrine of limited powers mean that they cannot do what is not
> specified? (If I'm not mistaken, IANAL, etc...)
>  

If so, why would we need the First Amendment to protect us from Congress 
regulating speech? [etc.]  

And, in any event, the limited powers argument 
wouldn't apply to the states:  "The powers not delegated to the United 
States by the Constitution, nor prohibited by it to the States, are 
reserved to the States respectively, or to the people."

EBD


> > The states are prohibited through the 14th Amendment via the
> > Slaughterhouse cases, the ability of the executive branch to
> > violate due process is questionable (from a legal viewpoint, not
> > a practical one...the President cannot order you placed in jail
> > unless you have broken a law which requires congress to have
> > made the law in the first place...)
> 
> And the ITARs are only executive orders, no? Not laws, right? I'm curious 
> as to why they're considered valid. Anyone know?
>

Mark M. wrote:
> On Sun, 22 Sep 1996, Bill Stewart wrote:
> > The First Amendment does not contain the phrase "national security"
> > anywhere in it.  It does, however, begin with a rather explicit
> > "Congress shall make no law" which it applies to a bunch of things.
> > However, the body of the Constitution does say there should be a
> > Supreme Court, and the Supreme Court has (fairly reasonably) given 
> > itself
> > the job of deciding what's Constitutional and what's not.
> > The Supremes have, over the years, made a bunch of generally 
> > outrageous
> > decisions about what kinds of speech are protected by the First 
> > Amendment
> > and what kinds aren't, though their opinions have been gradually
> > improving since some of the really appalling ones earlier in the 
> > century.

> I did a little searching and couldn't find anything about a national
> security exception in the Consitution.  It's already a stretch to
> claim that disclosure of information vital to "nation security" is
> treason.  The Espionage Act, which is so obviously unconstitutional, 
> seems to make "harmful" speech illegal.

Although we're (allegedly) governed by the Constitution, the principles 
contained in the DOI have precedence.  With issues such as modern 
National Security (in a nuclear age, etc.), where certain aspects of the 
Constitution seem to get skirted or excepted for The Greater Good, you 
might want to include the DOI in your analysis.