Is Coding Speech?

We got into an interesting discussion yesterday at USV during our analyst interview process. A candidate said that he believes coding is speech and so applications should be protected like speech is protected.

Of course, not all speech is protected and not all code should be protected. I went to Wikipedia this morning and read a bit up on the law on this. From the “hate speech” page on Wikipedia:

Some limits on expression were contemplated by the framers and have been read into the Constitution by the Supreme Court. In 1942, Justice Frank Murphy summarized the case law: “There are certain well-defined and limited classes of speech, the prevention and punishment of which have never been thought to raise a Constitutional problem. These include the lewd and obscene, the profane, the libelous and the insulting or “fighting” words – those which by their very utterances inflict injury or tend to incite an immediate breach of the peace.”

I suspect we can all come up with examples of code that would not be protected. Malware being the prime example.

I’m curious if there is case law on protecting code as speech and also if there is any case law that defines what kinds of code would not be protected.

To all the lawyers in the AVC community, can you educate us on this? I’m curious and I suspect others are too.