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

12 Pages Posted: 14 Dec 2015

See all articles by David H. Kaye

David H. Kaye

PSU - Penn State Law (University Park); ASU - College of Law & School of Life Sciences

Date Written: 2000

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

Suggested Citation

Kaye, David H., The Propriety of 'Facial Challenges' to Prior Restraints on the Use of the Internet for Scientific Speech (2000). 40 Jurimetrics J. 445-56 (2000), Available at SSRN: https://ssrn.com/abstract=2702967

David H. Kaye (Contact Author)

PSU - Penn State Law (University Park)

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United States

HOME PAGE: http://www.personal.psu.edu/dhk3/index.htm

ASU - College of Law & School of Life Sciences ( email )

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Phoenix, AZ 85004
United States

HOME PAGE: http://www.personal.psu.edu/dhk3/index.htm

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