[dahart]

> “Thermonuclear war” is an easier sell in this balancing of concerns than “better radar”.

Why? That doesn’t explain the entire rest of everything that is currently export controlled, right? Threat of Thermonuclear war is not the basis for the ITAR program.

[caf]

Why? Because it's a more grave and imminent threat, and the jurisprudence around first amendment vs prior restraint against publishing of classified material is around balancing of concerns, with prior restraint justified in cases of "direct, immediate or irreparable harm to our Nation or its people". It's not a black and white line, the degree of harm matters.

"Everything else that is currently export controlled" has not been litigated (but note that we are only concerned here with limits on the export of expressive text, not for example actual armaments). The one case where restrictions on the export of software by ITAR was litigated - Bernstein v. United States Department of States (District Court of California) (1997) - the District Court ruled the regulations in question were an unconstitutional prior restraint on speech and issued a declaratory judgement preventing the government from enforcing the ITAR in question against DJB or anyone else seeking to use, discuss or publish his encryption code.

[dahart]

> has not been litigated

Oh I see what you mean now, thanks for the explanation. Yes I agree that when challenging in court whether some tech can be classified or not, then nukes are an easier sell than radar. I was more referring to what happens before that, how something becomes classified and/or export controlled by the government. It doesn’t have to be litigated in order to legally limit feee speech, while it does have to be challenged, litigated, and won in order to become free speech.