The Propriety of 'Facial Challenges' to Prior Restraints on the Use of the Internet for Scientific Speech

Abstract

Two federal courts of appeals recently ruled that posting encryption source code on the Internet is a form of scientific speech and that export regulations requiring a license for such activity are a prior restraint on expression. However, in their present posture, these cases leave open the possibility that the courts will decide that the plaintiffs, who did not themselves apply for a license, lack standing to attack the export regulations as unconstitutional. The temptation to avoid the merits of the litigation in this way should be rejected. The First Amendment confers standing on litigants to challenge the export regulations as a prior restraint without submitting to its demands.

Keywords: First Amendment, freedom of speech, encryption source code, prior restraints, Internet