http://www.exportlawblog.com/archives/771 Latest News on DDTC, BIS, OFAC, and other export law matters Sat, 13 Mar 2010 17:43:29 +0000 http://wordpress.org/?v=2.9.1 hourly 1 http://www.exportlawblog.com/archives/771/comment-page-1#comment-91787 Hillbilly Fri, 16 Oct 2009 04:52:31 +0000 http://www.exportlawblog.com/?p=771#comment-91787 A positive certificate is always in good taste. That said, the prohibition against negative certs, as my old friend Eric Hirshhorn suggested years and years ago, run afoul of the Berman Amendment when IEEPA id the only statutory authority. But in addition to Berman Amendment, the whole prohibition on furnishing information runs afoul of the 1st Amendment: The Briggs&Stratton case, which was the only Circuit court case to consider a First Amendment challenge to the OAC information furnishing regs, predated the majority of the Supreme Court's decisions narrowing the so-called commercial exception to the First Amendment. The OAC information furnishing regs are so blatantly content-based prohibitions that they can not withstand First Amendment scrutiny in the modern era. A positive certificate is always in good taste. That said, the prohibition against negative certs, as my old friend Eric Hirshhorn suggested years and years ago, run afoul of the Berman Amendment when IEEPA id the only statutory authority. But in addition to Berman Amendment, the whole prohibition on furnishing information runs afoul of the 1st Amendment: The Briggs&Stratton case, which was the only Circuit court case to consider a First Amendment challenge to the OAC information furnishing regs, predated the majority of the Supreme Court’s decisions narrowing the so-called commercial exception to the First Amendment. The OAC information furnishing regs are so blatantly content-based prohibitions that they can not withstand First Amendment scrutiny in the modern era.

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