Junger v. Daley

Encryption source code was a special computer programming language, such as BASIC, C, or Java, that was used to make encryption software. Encryption software instructed a computer’s circuitry to execute an encoding process, which was the basis for converting a readable message into scrambled form. Encrypted messages were important for military operations and national-security reasons. Computer programmers who were familiar with specified programming languages could read and understand source code, while most people could not. Professor Peter Junger maintained websites on university classes that he taught, including a class on computers and the law. Junger wanted to post encryption source code on his website to demonstrate how computers work. However, under the Export Administration Regulations (EAR), Junger’s post was defined as an “export,” and encryption source code was regulated for national-security reasons. The EAR generally classified and licensed electronic exports of nonmilitary technology and software, including items used for encryption. Junger filed an action against the head of the relevant government agency (defendant) to obtain a declaration that Junger could post the specified computer source code on his website because it was protected under the First Amendment. The district court disagreed and granted summary judgment for the government. The court found that the source code was not sufficiently expressive to warrant protection under the First Amendment. Junger appealed.