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Decoding Speech: The implications of giving computer code First Amendment protections

illustrations by Marlowe Pody '21, an illustration major at RISD

Today in the United States, anyone equipped with the right string of 0s and 1s can 3D print an unregistered and untraceable assault rifle. That is thanks to Cody Wilson, a self-proclaimed anarchist who reached a settlement in 2018 with the US Department of State that allowed him to share downloadable, open-source code for 3D-printed guns. While this may seem like an archetypal Second Amendment issue, the printing of such weapons has instead been made possible by recent interpretations of the First Amendment. It’s clear that guns do not qualify as speech. Instead, the settlement was reached on the grounds that prohibiting the publication of this computer code infringed upon Wilson’s First Amendment rights.

Code makes the world go round: It allows people to communicate with friends, access digital bank records, send Venmo requests, watch movies, and much more. Code also directs critical infrastructure, from flight control systems to electronic medical records to entire power grids. Despite being unintelligible to most Americans, computer code is its own language with many unique dialects. Code looks and acts like speech, but whether programming languages are protected by the First Amendment is another question entirely.

The question may seem innocuous, but the ramifications of granting First Amendment protections to computer code would be immense. If classified as free speech, it would be all but impossible to regulate the internet, and the consequences could even extend into public safety. Despite the appeal of the argument that computer code—like any other form of writing—constitutes free speech under the First Amendment, courts must be careful not to legitimize wholly unregulated code. To do so would open the door to dangers ranging from a proliferation of 3D-printed weapons to the deregulation of content available on the internet.

Before assessing whether code should be protected speech under the First Amendment, it is essential to first define what constitutes speech. The Supreme Court has established two types of speech: ‘pure speech,’ which is written and verbal, and ‘symbolic speech,’ which comprises expressive actions such as clothing choice, flag desecration, and cross burning. Where lower courts have disagreed on the regulation of speech, the Supreme Court has upheld that governments may not restrict the content or message of speech, with a few exceptions. It is not the state’s role, the Court opined, to determine what the public should see or hear. Rather, the government’s duty is to ensure that all speech may be heard, regardless of whether it offends.

When actions affect the interest of the public good, however, governments possess the ability to infringe upon most constitutionally guaranteed rights. Speech is no exception: Governments can pass regulations with incidental effects on speech so long as those regulations are content-neutral. Cities have noise ordinances that prevent individuals from yelling after certain hours, political protests cannot occur without a permit, and libel is unlawful.

Whether or not First Amendment protections should be imputed to computer code poses an increasingly pressing and unsettled legal quandary. The question was first considered by a US Court of Appeals in Bernstein v. US Department of Justice (1996). The case examined whether the government could prevent UC Berkeley graduate student Daniel Bernstein from exporting his code for “Snuffle,” an end-to-end encryption algorithm he created. In an unprecedented ruling, the Court decided that Bernstein’s code could be exported without regulation, as his code was protected speech under the First Amendment. The opinion stated: “This court can find no meaningful difference between computer language…and German or French…computer language is just that, language, and it communicates information either to a computer or to those who can read it.”

The precedent set in Bernstein was further developed in Universal City Studios, Inc. v. Corley (2001), when a US District Court ruled that communication does not lose speech protections simply because it is written in computer code. The ability of a broad audience to understand the speech is unrelated to constitutional inquiry. By the turn of the century, there was no longer any doubt: Computer code is speech, at least according to US courts. But what of the product of that code? Indeed, whether or not the outputs of code—websites, video games, algorithms, and so forth—are considered protected speech is far murkier.

Theoretically, code constitutes pure speech whereas its outputs could be considered expressive speech. Although the distinction between the First Amendment protections of code and of computer programs may seem like a dull legal question, it has recently been raised in relation to both gun manufacturing and terrorist attacks, signaling its real-world importance.

The 2015 San Bernardino shooting placed the question of code and its outputs as protected speech at the forefront of US legal scholarship. In an attempt to access the deceased shooter’s communications, the FBI issued an order compelling Apple to create a “backdoor” to the iPhone, which would covertly bypass the phone’s security encryption system. The FBI also sought Apple’s cooperation in designing a software update that would remove a security feature that deleted the phone’s data after 10 unsuccessful password attempts. The government claimed that law enforcement agencies have the legal right to obtain communications through a warrant, but they often lack the technical ability to do so. Therefore, companies like Apple should furnish user data to the government upon request. Apple, on the other hand, maintained that acquiescing to the order would create privacy vulnerabilities that could be exploited by criminals and foreign agents.

Among other claims, Apple’s lawyers argued that requiring the company to code software to perform functions for the government “amounts to compelled speech and viewpoint discrimination in violation of the First Amendment.” Apple correctly stated that anytime the government seeks to compel speech, First Amendment protections are triggered under the “State Action” doctrine. However, the Supreme Court allows government action that infringes upon protected speech if said action is the most narrowly tailored means of serving a compelling state interest; there is a persuasive argument to be made that in this case it was. Ultimately, the government managed to access the encrypted communications before the California Magistrate issued its ruling. The case was then dismissed.

While Apple’s argument that code is speech is tantalizing, Cody Wilson proves that it is also incredibly dangerous. If the Supreme Court accepts the argument that code is speech outright, the ruling could render institutions unable to regulate content shared on the internet, even in the interest of public safety. Despite lower court precedent establishing code as free speech under the First Amendment, the Supreme Court must not open the door for the entirely unregulated distribution of code.