1 May 1998
Source: Digital file from Gino Scarselli

See related files at Peter Junger's Web site: http://samsara.LAW.CWRU.Edu/comp_law/jvd/

Documents of the suit: http://jya.com/pdj.htm

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

PETER D. JUNGER Plaintiff v. WILLIAM M. DALEY et al. Defendants
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> Case No. 96 CV 1723
> JUDGE JAMES S. GWIN
> PLAINTIFF'S MOTION
> TO SUPPLEMENT THE RECORD

Plaintiff Peter D. Junger respectfully moves the Court for permission to supplement the record with a public statement made by Defendant William Daley, Secretary of Commerce, on April 15, 1998.(1) The reasons for the motion are set forth below.

On April 15, 1998, Secretary Daley gave a statement accompanying the release of a study on electronic commerce entitled "The Emerging Digital Economy." In his statement, Secretary Daley commented on the Administration's encryption policy noting that "encryption products are rapidly multiplying in the global market" and that "[o]ur policy, ironically, encourages the growth of foreign producers at the same time it retards growth here." (Secretary's Statement at 6.) Of particular importance, the Secretary admitted that implementation of the Administration's encryption policy "has been a failure" and, furthermore, that "the global market is rendering our policy obsolete." (Id.) The Secretary's admissions are material to the government's argument in support of summary judgment.

As the Court knows, Plaintiff argues that the regulations should be viewed as an unconstitutional prior restraint. (See Pl.'s First Br. at 20-23.) The Defendants' only argument is that the regulations should be analyzed under "intermediate scrutiny." Plaintiff strongly disagrees that intermediate scrutiny is the appropriate standard because intermediate scrutiny has no application to prior restraints.(2)

(Pl.'s Reply Br. at 11-13.) Nonetheless, even under intermediate scrutiny, the government bears the burden of showing that the regulations alleviate the harms it asserts "in a direct and material way." As noted in Turner Broadcasting System, Inc. v. FCC, 114 S. Ct. 2445 (1994), a case cited repeatedly by the Defendants,

> [w]hen the Government defends a regulation on speech as a means to redress past harms or prevent anticipated harms, it must do more than simply "posit the existence of the disease sought to be cured." . . . It must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way.

Id. at 2470 (citations omitted) (emphasis added). The remarks made by the Secretary of Commerce show that the government cannot meet this burden. If the government cannot meet this burden under its own theory of the case, the government cannot prevail on its motion for summary judgment.

Because the Secretary's statement is material to the government's position and may be relevant to the Court's disposition of this case, Plaintiff requests that the Court grant his motion to supplement the record.(3)

Respectfully submitted,

________________________

GINO J. SCARSELLI (0062327)
664 Allison Dr.
Richmond Hts., OH 44143-2907
(216) 291-8601

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1. Attached to this motion is a copy of the Secretary's statement faxed to Plaintiff's undersigned counsel on April 27, 1998, by the Secretary's Office of Public Affairs. The statement was not available for oral argument because it was apparently removed from the Office of Public Affair's web site at <http://www.doc.gov/ops/>.

2. Plaintiff also argues that intermediate scrutiny is not applicable because the regulations are in fact content-based.

3. Undersigned counsel has conferred with Mr. Coppolino, counsel for the Defendants, who intends to file an objection to this motion. Mr. Coppolino, however, will not be able to respond until after May 18, 1998. Plaintiff does not object to extending the Defendants' time to respond to after that date.

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a copy of the foregoing was faxed and mailed by regular U.S. mail to defendants' counsel, Department of Justice, Civil Division Room 1084, 901 E Street, N.W., Washington, D.C. 20530, on April 28, 1998.

Respectfully submitted,

_______________________

Gino J. Scarselli (0062327)
Attorney for Professor Junger

[End]

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JYA note: See Secretary Daley's statement removed from DoC/OPS: http://jya.com/daley-ecom.htm