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					
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San Mateo, CA  94402
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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.