FILED AUG 28 5 20 PM '97 RICHARD W. WISKING CLERK, U.S. DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA CINDY A. COHN, ESQ.; SBN 145997 McGLASHAN & SARRAIL Professional Corporation 177 Bovet Road, Sixth Floor San Mateo, CA 94402 Tel: (415) 341-2585 Fax: (415) 341-1395 LEE TIEN, ESQ.; SBN 148216 1452 Curtis Street Berkeley, CA 94702 Tel: (510) 525-0817 JAMES WHEATON; SBN 115230 ELIZABETH PRITZKER; SBN 146267 FIRST AMENDMENT PROJECT 1736 Franklin, 8th Floor Oakland, CA 94612 Tel: (510) 208-7744 ROBERT CORN-REVERE, ESQ. Hogan & Hartson, L.L.P. 555 Thirteenth Street, NW Washington, DC 2000 Tel: (202) 637-5600 Attorneys for Plaintiff Daniel J. Bernstein IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA DANIEL J. BERNSTEIN ) ) C 95-00582 MHP Plaintiff, ) ) v. ) ) PLAINTIFF'S OPPOSITION TO ) DEFENDANTS' EX PARTE UNITED STATES DEPARTMENT OF ) MOTION FOR STAY PENDING STATE et al., ) APPEAL ) ) Defendants. ) ________________________________________) In order to be entitled to a stay pending appeal under Rule 62 F.R.Civ.P., a petitioner must show the likelihood of his prevailing on the merits on appeal, that he is likely to suffer irreparable injury from the denial of the stay, that the other parties will not be substantially harmed by the grant of the stay, and that granting the stay will serve the public interest. See, e.g., Lopez v. Heckler, 713 F.2d 1432, 1436 (9th Cir. 1983). The decision rests within the court's discretion. F.R.Civ.P. 62(b). Indeed, where the deprivation of First Amendment rights is at issue, it would be an abuse of discretion for the District Court to grant the stay absent a compelling showing. See Wildmon v. Berwick Universal Pictures, 983 F.2d 21, 23-24 (5th Cir. 1992) (stay of injunctive relief issued to "preserve the status quo" reversed where district court had granted injunction on First Amendment grounds). The government can show none of the required elements, particularly where, as here, the continuing deprivation of Plaintiff's First Amendment rights is at stake. Granting a stay[1] would deprive Professor Bernstein of his constitutional rights, as the court has found now in three successive opinions. As the court was well aware when it issued the injunction, Bernstein has been restrained by Defendants from publishing his source code on the Internet for over five years. "Loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury" justifying injunctive relief. Elrod v. Burns, 427 U.S. 347, 373 (1976). In support of their argument that Plaintiff will not be harmed by continuing the prior restraint on his speech, Defendants repeat their self-serving statement that they do not regulate "teaching publishing, or publicly discussing ideas concerning encryption." Def's Ex Parte Motion at 3:10-11. Yet this assertion has been soundly rejected. As this Court observed: By the very terms of the encryption regulations, the most common expressive activities of scholars--teaching a class, publishing their ideas, speaking at conferences, or writing to colleagues over the Internet--are subject to a prior restraint by the export controls when they involve cryptographic source code or computer programs. Opinion of August 25, 1997 at 23:18-21. Defendants' requested stay would reimpose this prior restraint on Plaintiff, once again preventing him from participating in these common scholarly activities. Undoubtedly the balance of hardships here tips sharply in favor of Plaintiff. It is also clear that the public interest would not be served by allowing the government to continue to violate the First Amendment. Finally, it is highly unlikely that Defendants will be able to show either that they are likely to prevail on the merits or that denial of a stay will cause irreparable injury. Given the targeted nature of the injunction[2] issued here, any claim of irreparable harm rings quite hollow. This is particularly so in light of Defendants' repeated claims below that the federal regulations never restricted scholarly publication, and that academic writing in this field is widespread. Any such claim is further undermined by the exemption in the regulations for source code printed on paper, as opposed to electronic forms of the same information. Opinion of August 25, 1997 at 25:18-26:2. This court properly found that this exemption deprived the government's national security claims of credibility. Opinion of August 25, 1997 at 25:5-17. It is not necessary to grant a stay to "preserve the status quo" where, as here, the government admits that cryptographic information is freely available to foreign entities notwithstanding the export controls. Id. None of these conclusions are diminished even where, as here, the government seeks to stay a judgment based on allegations of national security. See Armstrong v. Executive Office of the President, 877 F. Supp. 750 (D.D.C. 1995) (National Security Council denied stay pending appeal where it could not show likelihood of success on the merits or irreparable injury). The Pentagon Papers case, which the District Court relied on below, also provides important insights. See United States v. New York Times Co., 328 F. Supp. 324, 330 (S.D.N.Y.) (injunction denied where government could not demonstrate irreparable harm), aff'd, 403 U.S. 713 (1971). There, the Second Circuit granted a stay of the District Court's denial of an injunction, thus allowing publication of the Pentagon Papers despite national security allegations, but was reversed by the Supreme Court. United States v. New York Times, 444 F.2d 544 (2d Cir. 1971), rev'd 403 U.S. 713 (1971). In a parallel case, the D.C. Circuit declined to overturn the District Court's denial of an injunction with respect to publication in the Washington Post, and the Supreme Court upheld the decision. United States v. The Washington Post Co., 446 F.2d 1327 (D.C. Cir. 1971) (en banc), aff'd, 403 U.S. 713 (1971)[3]. Moreover, it would be an abuse of discretion for a court to grant a stay based upon nothing more than assertions of a national security interest. Cf. Clinton v. Jones, 117 S. Ct. 1636 (1997). Dated: 8/28/97 McGLASHAN & SARRAIL Professional Corporation By [Signature] for CINDY A. COHN and for McGlashan & Sarrail, P.C. Attorneys for Plaintiff Footnotes: 1. If the Court is inclined to consider a stay, it should be for the briefest possible time and only to allow defendants to appeal, not to decide whether they will appeal. 2. Plaintiff's position is that, in light of the Court's statements that "plaintiff should not fear prosecution for teaching and writing about encryption" nor "have to conduct his scholarly activities under stipulation with the government," Opinion of August 25, 1997 at 30: 15-17, the injunction is properly construed to encompass plaintiff's ongoing and future scholarly activities - for example, the computer programs and related materials disseminated under stipulation with the government for plaintiff's spring semester cryptography course because he reasonably feared prosecution. 3. The D.C. Circuit granted an extremely limited stay -- by its terms lasting only two days -- to permit Supreme Court review, but did so only because the Court already had before it the contrary order of the Second Circuit. 446 F.2d at 331. Nevertheless, the D.C. Circuit was concerned about granting even this limited stay because other newspapers were beginning to print the Pentagon Papers. Here, given the existence of foreign sources for cryptography and the ability to publish in other media, Professor Bernstein is subject to the same "inequities" that concerned the D.C. Circuit. But the Supreme Court has since settled the question that was, at that time, undecided: the government's national security allegations do not trump the First Amendment.