>Judge Nelson unfortunately bought the government's bogus claim that
>crypto source code was more like a machine than speech, claiming that
>"Only a few people can actually understand what a line of source code
>would direct a computer to do." But even Nelson did not say he'd
>definitely uphold the regulations as constitutional; he just thought
>Bernstein should have used a different legal theory to argue his case.
I think the worst of Nelson's argument is precisely the "only a few people"
stretch, which, if turned on its face, would argue that Navajo or obscure
music can subject to restrictions without violation of 1st Amendment simply
because it is difficult to find that many people who understand it.
This "only a few people" argument should really be attacked directly to
prevent missteps at the Supreme Court level. Did the Appelate briefs have
anything to say about this argument?
Ern
