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.


Comments (Archived):

  1. jason wright

    how did this come up in the conversation yesterday, and is he now employed?

    1. JimHirshfield

      Fred’s “taking the fifth” on that front.

      1. jason wright

        this is a bit over my head.i don’t see how code can be viewed as speech, and therefore i don’t see how code can be protected by laws about speech and verbal expression, freedom of, slander et.c.code and copyright i get.code and patents i get…or i think i do, or maybe i don’t.clever clogs interviewees 🙂 i’d send him back to university to complete a PhD.

        1. JimHirshfield

          No need to over-educate the fella.But yeah, I agree with you that this is difficult to nail down. But, FYI, free speech is not restricted to verbal. Include written.

          1. jason wright

            disqus is so peer to peer

          2. JimHirshfield

            Very peery, yes.

    2. fredwilson

      We haven’t made a final decision on the analyst position. It came up in the context of a hack he did that was effectively political speech

      1. Rick Colosimo

        Hacking something implies doing an act for political reasons. That’s not what I would frame in a question as code. Reframe it like this: instead of hacking the American Fur Coat Ass’n website to put a blood smear graphic over it, the person threw blood on someone outside Lincoln Center. Both are political acts, not political speech.

      2. LE

        a hack he did that was effectively political speechLost in space robot on that one for sure.

      3. Emily Merkle

        I managed to hack myself once. That was effective.

  2. Avi Deitcher

    What are the practical implications? What case would it matter?

    1. Chris Peterson

      Well, at least in the United States, it’s more difficult to regulate modes of expression classified as speech. So if code == speech, the practical implications is that it is comparatively more difficult to for the American government (and organizations rhetorically bound to the principles of the American government) to regulate code.

      1. Avi Deitcher

        Hence the DeCSS or electrical grid examples.So the relevant question may be not, “is code speech”, but “is code protected speech”?

        1. Chris Peterson

          Sure – see my comment above.

    1. Avi Deitcher

      Very clearly. And remember the “encryption software as weapon” export restriction games with RSA?

    2. fredwilson

      Yup. Great example

  3. PeterisP

    Actually, in my mind malware is an opposite example – it’s something for which (exactly like speech) the legality depends on the circumstances, context and intent. Pretty much all malware is legal and moral to create, distribute and use on systems that you own and control, and such tools (including rootkits, vulnerability scanning tools, ‘weaponized’ exploits etc) are widely used for the purposes of *implementing* security, but would also fit most reasonable definitions of malware.The only illegality is using the tool to attack or defraud others.Both companies and end-users would benefit from ensuring that even “malware” is treated speech-like, i.e., that random security experts, academia, and white hat penetration testers are freely able to discuss, create and share such tools; otherwise we’d all be at a significant disadvantage to the “black hat community”.

    1. fredwilson

      I agree that it can be used for positive effects by security teams

    2. Emily Merkle

      …honestly – no one can keep up with true black hat.

  4. mikenolan99

    Fred, If someone posted a 40 line hunk of code here in comments that, if run, would disable the US power grid, would you moderate the comment?

    1. Avi Deitcher

      Well, Mike, whether or not Fred chooses to or not, is not the question at hand. This site is Fred’s property, to do with as he chooses.Whether or not the federal government (or any state or local one, for that matter), has the right to *force* Fred to remove it, is the question at hand.You and I have no rights to keeping Fred from suppressing our speech, just rights to keeping the government from suppressing our speech.

      1. mikenolan99

        True, of course… My question was to make us all think about the issue. I would not print the code on my site, nor do I think any sane person would.So, the question is, should “we the people” allow anyone to post the code?

        1. Avi Deitcher

          I like to think Fred, Avi and Mike (and everyone else here) are responsible enough to choose *voluntarily* not to post such damaging code.Should the government be allowed to publish that code? My first thought is that publishing that code is akin to shouting “Fire” in a crowded theatre, and thus unprotected per Holmes’s famous decision in Schenk v US.But the analogy that seems more appropriate is towards teaching someone how to shout “Fire” and the meaning of the word. Schenk leaves that protected; only actually shouting “Fire”, and only in a theatre, is restricted.By Holmes’s reasoning, we do not restrict knowledge due to speech, only the unsafe use of speech itself in very compelling cases.So perhaps the government cannot restrict publishing that code, only its usage?

      2. Matt A. Myers

        Interesting. So I wonder what happens in a situation when there are no adequate public-government owned forums for people to share on? They may then be unable to share their views anywhere.

        1. Avi Deitcher

          Speech was never protected *in* government-owned facilities or newspapers. It was only ever protected *from* government interference.Put in other terms, the First Amendment does not require the government to create a space where you can speak freely. You do that on your own space in your own time (or someone else’s, if they let you).You are guaranteed non-interference, no one guarantees that they will provide you a platform. For that, spend your own money or use your own energy,

          1. Matt A. Myers

            “… the First Amendment does not require the government to create a space where you can speak freely.”Maybe it should – if we consider freedom of speech so important. 🙂

          2. Avi Deitcher

            Would it not crowd out private spaces? And eventually lead to “preferred” and “unpreferred” speech? The essence of American democracy is the individual and his/her responsibilities.

          3. Matt A. Myers

            I don’t follow how it could crowd out private spaces? Do you mean compete with the private spaces?If that, then yes, publicly funded spaces would compete. Right now it sounds like government/we are allowing private firms to provide that utility to people – and as the only options unless you can afford to pay for your own private space online. I know there are lots of options for people to put up the content they want, but what happens when these big platforms that are the judge and jury decide to delete all of your content, the following of people you amassed, etc. because of something you posted?Perhaps then too the followers you have gained, the interconnection and relationships you have formed, should be protected – and exportable – too. E.g. Facebook doesn’t own your networks, and so if they do something dishonest or govern in a way that you don’t like then you can be mobile. This would allow for much faster organization of the world and better governance would increase rapidly as those metrics could no longer be used as control mechanisms and barriers to entry.

          4. Avi Deitcher

            Is it any different than it has always been? Historically, the only way you could exercise your speech rights other than to those within the reach of your voice was to convince a private newspaper to publish your opinion or pay for an ad (or flyers and pay to have them distributed, etc.). We actually have far more options today than we ever have before.The question you are raising is should we, as taxpayers, be forced to pay for sufficient platform for everyone to express every opinion? And could any such platform every be big enough?

          5. Matt A. Myers

            Not necessarily, but are we not supposed to question and perhaps evolve the status quo? :)If you look at the cost-benefit analysis, how does a situation where private interests have control to do what they want compare with an evolving platform supported by everyone? The actual costs would in fact be less, the issue though is how resources and money are viewed – along with the issue of organization. If everyone in the world was working on the same issue to problem solve together, or rather believed that their work was an important piece to that, then there aren’t really competitive private businesses anymore. There are a whole bunch of other nuances that popup but I don’t have time to write them out right now.Also, the government doesn’t actually have to build the platform or even necessarily support it – however it can set the rules that must be followed in which facilitates supporting the positive leading metrics that are desired.

          6. Avi Deitcher

            > are we not supposed to question and perhaps evolve the status quo?100%! Of course, whatever position there is, at one point or another I will argue both sides of it. Just how I challenge my own assumptions.I think the underlying assumption is that the definition of “private” is each and every one of us, making our own decisions, whereas “public” is an overall consensus, i.e. no room for non-majority consensus opinions, as unwanted or too expensive, and enforced by a bureaucracy that, by definition, is human with its own interests, in other words, another private interested actor, but with monopoly power.What would we gain by having a centralized vs multiple competitive individual private platforms?

    2. fredwilson


    3. PrometheeFeu

      That would also not be protected by the 1A. Free speech != free-for-all.

  5. adsussman

    Exactly. DeCSS. My favorite was the site that listed all of the “free speech” versions of DeCSS that then became available. T-Shirts. DeCSS The Movie.…I will note that the topic is not a simple one b/c it has to do with various different forms of IP, and it’s implication is different for each. For example, free speech vs trade secret is not the same set of arguments as free speech vs copyright infringement which is not the same as free speech vs the anti circumvention rules of the Digital Millennium Copyright Act.

  6. Chris Peterson

    Fred, all analogies are treacherous, but part of the problem with the hate speech comparison is that there *aren’t*, contra Murphy, “certain well-defined and limited classes of speech” which are Constitutionally unprotected. Or, more precisely, while there may be well-defined and limited classes of unprotected speech, the *contents* of those classes are in practice underdetermined.A simple example: in the 1942 case (Chaplinsky v. New Hampshire) from which that quote is taken, the Supreme Court ruled that a man who called another a “God-damned racketeer” in a town square could be convicted under a state statute for uttering “offensive speech” because these words fell into the class of “fighting words” unprotected by the First Amendment. Compare this to the 1971 case (Cohen v. California) in which the Supreme Court overturned the conviction of a man for wearing a jacket which read “Fuck the Draft” into a courtroom because it was political speech. In Cohen, SCOTUS went so far as to (famously) write that “one man’s vulgarity is another man’s lyric.”Now, there’s a distinction usually drawn between these two cases (that the former was unprotected fighting words, and the latter rude but protected political speech), but it’s a distinction without a difference, or at least a difference which SCOTUS conjured in order to provide a distinction which supported the decision they needed to make. I suspect most legal scholars think Chaplinsky was poorly decided (in the sense that it is inconsistent with the general trend of SCOTUS jurisprudence), but Murphy’s quote, and the category of “fighting words,” continue to circulate.***The point here is: sure, we might come up with classes of code analogous to classes of speech which we don’t think should be protected. But the difficulty isn’t (and has never been) imagining the classes, but imagining the objects which populate the class, i.e., in the execution of the idea.

    1. fredwilson

      Great comment!

      1. Chris Peterson

        Glad to help. Here is one of the foundational cases in the ‘is code speech?’ domain:…”After four years and one regulatory change, the Ninth Circuit Court of Appeals ruled that software source code was speech protected by the First Amendment and that the government’s regulations preventing its publication were unconstitutional.”***As for laws which define what kind of code (or uses thereof) are unacceptable: the most straightforward example would be the CFAA, a terrible piece of legislation which was used to prosecute Aaron Swartz, and a state analogue of which was invoked to threaten Jeremy Rubin, the MIT undergraduate who organized the distribution of Bitcoin on campus (see….

        1. Heather Dietrick

          Another seminal code as speech case: Universal City Studios, Inc. v. Corley, 273 F.3d 429, 447 (2d Cir. 2001). The 2d Cir. found that the software program at issue qualified as speech, the underlying code had speech and non-speech elements, and that the injunction imposed was content neutral, serving a substantial gov’t interest, so it stood. A bit more reading here: http://digital-law-online.i

    2. PrometheeFeu

      Also, hate speech is certainly not unprotected.

  7. Aaron Klein

    The Supreme Court has definitively ruled: you can’t call <fire/> in a crowded codebase.

    1. Matt A. Myers

      That’s reason coming into play – just like when we first learn the concept of “don’t cry wolf!” The reason of course being that yelling such a thing is harmful and threatening to everyone in the situation, and we can’t have a society where people can yell alerts whenever they want – the world couldn’t feel very safe then if you couldn’t depend on the tribe/pack to warn you only when necessary.

    2. PrometheeFeu

      Technically, I’m pretty sure that was dicta.

  8. JimHirshfield

    What I say is protected, subject to the circumstances when and where I say it. But code is ever-present in space and time. So, what the code “says” is being said everywhere and and forever. Ergo, we can not know now under what circumstances this protected “code speech” would exist at some time in the future. Perhaps what’s stated now is innocuous, but in different circumstances, it’s malicious.#iamnotanattorneybutiplayoneontheinternet

    1. Chris Peterson

      In what way is code ever-present in space and time? Code is expressed computationally and discretely. Subject to the circumstances, there might be more or less legal ways to invoke a function of code just as there might be more or less legal ways to say a string of words or more or less legal ways to wield a knife.

      1. JimHirshfield

        The code that runs this website is always here, no?

        1. Chris Peterson

          What do you mean by “always here”? As you know, Disqus isn’t “always here,” it’s operationalized across many servers, in many jurisdictions, with many users, relying on various substrate infrastructures that are themselves broadly distributed in the same (and in different) ways.With code, there is no general “always,” and there is no general “here,” but specific conditions which obtain to specific places and specific times. Disqus is the immediate and deeply contingent assembly of these many different actors. Change anything upstream (a CDN suffers catastrophic power loss, an intermediary jurisdiction elects a more conservative judge, a board member has a change of heart, Fred implements a change in moderation policy), and everything downstream changes

          1. JimHirshfield

            None of what you are saying changes the fact that there is always code on this HTML page. View Source. It’s there now, it’s there tomorrow…it’s code.

          2. PrometheeFeu

            Same thing for non-code which is widely distributed.

  9. Matt A. Myers

    Why wouldn’t “malware” be included? It’s the intent behind the use of something that is the issue – just like certain words can be used in non-hateful ways, that others may use in a hateful way.And so what if a tool gains access to someone’s computer after they run it? If they know what it would do and they run it, then the intent isn’t as malware. If a person unknowingly executes a file that does something they don’t know, then yes, that’d be malware – but it’s the same code/speech – just the intent behind it of the person distributing/voicing the thoughts that can be variable.

    1. andyswan

      You’re more than half right. The other part of the equation is how successful you are at achieving your intent.

      1. Matt A. Myers

        Can you give an example of what you mean by that?

        1. andyswan

          If I intentionally and incorrectly say “Matt Myers killed my dog” to keep you from getting a job, it’s only a crime (slander) if it works and you are damaged because of my speech.

          1. Avi Deitcher

            Andy, is there a distinction between First Amendment protection and Matt’s right to sue you for damages? I can see how your saying that is protected from govt interference by 1st Amendment rights, but Matt separately has a right to sue you for the damages caused by your correctly-exercised 1st Amendment rights.

          2. andyswan

            Yes in 1st Amendment application you are 100% correct. I was only saying that it usually takes more than “intent” to get “speech” to a criminal level.

          3. Avi Deitcher

            So intent (“mens rea”) is required but not sufficient, like with any criminal act?

          4. andyswan

            intent is not required with every criminal act.

          5. Avi Deitcher

            Disturbing thought, and I had heard that it had been weakened that way. When is it not required? When *should* it not be required?E.g. John smashes down your storefront window. If John was playing baseball and missed and it broke your window, he should be held civilly liable for damages. If John did it to cause you damage intentionally and perhaps frighten you (protection racket or the like), there should be criminal charges as well.

          6. Matt A. Myers

            Hm. Manslaughter is only one I can think of?

          7. andyswan

            “reckless” and “negligent” are usually used to assign “intent” where there was no actual intention.

          8. Matt Zagaja

            Reckless and negligence are not relevant to intent, but rather to a duty that you owe someone.

          9. andyswan

            They are used to assign intent in order to criminally charge someone for something that they did not intend to happen.

          10. Matt Zagaja

            Wikipedia has a good discussion of mens rea states at….The gist being that not all criminal laws have an intent requirement, though many do, and the MPC is concerned with state of mind but that state of mind need not rise to the level of intent.

          11. Matt A. Myers

            Okay, well, yes, having to prove damages. And well that’d certainly be hurtful to me too – I love dogs, and that’s part of my character, and I know the power of false claims and defamation, so as @deitcher:disqus pointed out I’d want to sue for defamation.Though I know the time, money and effort wouldn’t be worthwhile in such a case, and I can imagine the damages wouldn’t be rectified – especially if say that phrase “Matt Myers killed my dog” went viral and a few “quality” people saw and believed it or a large quantity of people saw it and believed it without investigation (as is how much of the population operates).

          12. LE

            I would litigate that even if Matt got the job he has been harmed.And any good attorney could make hay out of something like that (if money was not an issue of course which is a big “if” for sure).In other words “being damaged” and “showing damage to get someone to cough up bucks” are not the same.That said, a safer way to convey the same thought (with much less risk) is to create a parody song video called “Matt Myers killed my dog”. Or if I want to convey that Andy drinks to much I create a video “Scenes from an Italian Restaurant at the race track with Andy drinking bourbon”.

          13. Anne Libby

            LE, off topic. A friend is looking at buying a URL, I was thinking that you might be able to help with that. If so, how might I connect with you to see if this would be of interest? (Or you can find me via my website, I’m easily found via websearch.)(edited) Oh, scratch that. I clicked your disqus profile link and found the info. Last time I did that (many moons ago) it wasn’t there…

    2. Emily Merkle

      You can argue that “behavioral targeting” is malware.

  10. LIAD

    code is is poetry.god is a is a dance floor.

    1. fredwilson


    2. Emily Merkle

      Twitter is crack.

  11. bsoist

    If I were to write code that could transfer small sums of money from other bank accounts and deposit it in mine, I think there is a strong argument for protection as free speech. A lot of good could come from that, not the least of which is shedding light on security concerns. The obvious danger is that others might actually use the code, which makes the discussion more interesting.Even if I choose to run the code myself, isn’t that a separate act? The code itself is still protected, no?

  12. pointsnfigures

    I think code is free speech. But, freedom comes with responsibility.

  13. JamesHRH

    this is tail chasing.

  14. dk

    i don’t mean to short-circuit the interesting policy discussions here, but the comments mostly address the normative question (should code be speech? how should it be regulated?), not the empirical question i think fred is asking (is code speech?). there are pretty sophisticated arguments on both sides of that question, and there’s been a healthy debate over this issue for the past 20 years. (some reading materials are below.) if i had to give a short summary, it would be: yes, source code may be speech, object code less clear, but categorization as “speech” does not make it immune to regulation (just as other speech is not).

    1. Richard

      It may be more about location than content, public forum vs private forum see the case of the US vs the United Library Association. The issue was whether the the Government could require libraries to install internet filtering software on its computers. The court ruled in favor of the filtering, stating the that the issue is whether the library is a “public forum” for authors, digital or print, to express themselves.

    2. dk

      fred — moving the question up to the next layer of abstraction (human -> code -> code output), there’s also been an interesting debate about whether the output generated by software algorithms (such as search results) can be considered “speech” for purposes of the first amendment. a sampling of articles on the topic is below. again, no clear answers, but very interesting stuff that will have a big impact on how the internet (think search results) and robotics are regulated in the very near results are speech:…algorithm-based speech should be protected:…similar position:…contrary position:

    3. ShanaC

      what’s the difference between source and object code?

      1. Cam MacRae

        Object code is compiler output. Think of object code as type of machine code but with placeholders (symbols) for the linker that allow multiple object files to be combined into an executable. (That’s the précis, anyway.)

      2. dk

        cam has a good for the legal implications, the point is that source code is more clearly a direct act of speech by a human speaker (here, the coder) than object code. when plaintext source code is fed into a compiler, the compiled object code — for a variety of reasons — may not reflect the message the human speaker intended to convey. i think there are certainly arguments that executable object code can be speech, but it’s much easier to make the argument that plaintext source code is speech.

      3. PrometheeFeu

        Humans can’t read object code.

  15. Eliot Pierce

    I would hire the analyst who brought it up…

    1. fredwilson

      Well we have some hard choices to make in that regard

      1. LE

        Look I’m the first to acknowledge that being creative and inventive in certain areas is really a big big benefit. A wild mind running free can totally close deals, [1] or write songs, books or movie scripts. Of do great art or photography.So the question is what does it add to an analyst position? And does it raise issues or thoughts that will detract from the USV mission? I mean what if an analyst had years of legal training. That would totally fuck things up.By the VC multi bet model it would seem that an individual like this had a benefit but not if not surrounded by counterbalancing potential hiring specimens. (Meaning if I had to hire 10 analysts I might choose this guy but not if he was the only one. (Without knowing anymore than a sentence which is not enough to be sure).[1] God knows the shit that people will believe if it’s stranger than fiction.

      2. Anne Libby

        A good problem to have.

  16. andyswan

    Ok my 6 weeks of law school are gonna kick in here….Code is language. Period. Language does not equal speech.What is important is the way the language is used.If used to communicate or promote an idea or opinion, that is protected speech.If used to instruct criminal activity, conspire, defraud, etc that is not protected speech.Code is language. Replace “code” with “Spanish” and you’ll have your answer.

    1. Richard

      kudos..Knowing when to quit is a great skill set for a startup entrepreneur.

      1. andyswan

        I was expelled but I will still agree 🙂

        1. ErikSchwartz

          C’mon. What did you do?You can’t say that and then NOT tell the story.

          1. andyswan

            That story is only told over bourbon in loud, dark rooms.

          2. ErikSchwartz

            The National Field Archery Indoor Championships are in Louisville every spring. I’ll look you up.

          3. Anne Libby

            What with the bourbon and the indoor archery — there’s got to be a Game of Thrones reference to be thrown down here…

          4. LE

            Better to further burnish the image by keeping your mouth shut, then by opening it up and removing any doubt.

      2. Matt Zagaja

        But see contra: perseverance and grit ;).

        1. Richard

          See Freakonomics as to why quoting can be more difficult.

        2. LE

          But see contra: going off half cocked.

        3. andyswan

          Persevere toward a destination not along a path

    2. ShanaC

      May not be because of patent law?

      1. andyswan

        Infringing on patent requires that you get utility out of the code. The code itself violates nothing until it is applied in an illegal manner.

        1. Chris Chaten

          Can we take that a step further – if code=language, all other groups of words are adjudicated under copyright, not patent law (correct me if this is mistaken). If you copy the contents of a book (even a pop up book, picture book, etc.) you have violated copyright. To this end, hasn’t our system, in effect, allowed patents on the equivalent of books? Could someone ‘patent’ the formula (method) for a thriller, crime procedural, soap opera, et. al.?Stealing of code, as in theft of other IP, is different than patentability.

          1. andyswan

            I like the way you’re thinking but I don’t think it will fly. Reason being that the patent does not cover the words or language but instead covers the application or process or physical design. There are a zillion ways to describe what a widget does using a trillion synonyms, and all of them would be legal to print/say, but none of them legal to utilize for benefit. Fun line of thinking that’s for sure!p.s. I do think that you could patent a “method for generating thriller novels by computer”.

    3. Cam MacRae

      This seems to imply symbolic proposition is speech. Fair assessment?

  17. Tony

    I will leave the legal musings to others but I don’t think code should be considered free speech. A anti nuclear protester writes malware that causes a meltdown at nuke plant and releases radiation into the environment. Should his or her actions be covered as “free speech”? Code is a tool and coders should be held accountable for how they use said tools in a lawful or unlawful manner. .

    1. Emily Merkle

      Not coders – their employers. Unless coders are flying solo.

  18. Richard

    For the most part software is Commercial speech which is entitled to less protection under the First Amendment than noncommerical speech. In the law the courts refer to this as the standard of review, strict scrutiny vs intermediate scrutiny. Under the First Amendment, noncommercial speech is entitled to full protection, and any sort of content-based regulation is only valid if it can withstand strict scrutiny. However, commerical speech is not given such deference. For a content-based regulation of commercial speech to be valid, it only must withstand intermediate scrutiny.

    1. PrometheeFeu

      Not really no. Commercial speech is speech which proposes a commercial transaction. Code does no such thing unless you start sticking ads in the comments. Code describes a process.

  19. Brandon Burns

    Looks like someone just landed an analyst job!

    1. LE

      Unfortunate if that is the case. Halo effect.I noticed a long time ago that one of the ways people appear smarter than they really are (which is not the same as saying that they are not intelligent) is simply talking about or discussing issues that someone else hadn’t thought of or considered or doesn’t know about. Perhaps being so contemplative in one area that they appear overly smooth or confident (creating a halo that floats the boat at low tide).Did you watch the Snowden interview on NBC (Brian Williams?) He really really talks a good game. I can totally see him getting a whole bunch of people on board just based on his message delivery. (I only watched snippets but plan to watch the rest..)

      1. Emily Merkle

        You rather present halo effect (real) as a projection rather than a perception.

        1. LE

          Was Brandon’s acknowledgement of the halo that showed that it existed.Note the “!” at the end. As if “he nailed it”.Kind of like watching a video of someone viewing a tree in the forest falling and coming to the conclusion that a tree fell because of subjects hair moving for a few seconds.

          1. Emily Merkle

            Oh. nice, niiiice visual. I want to CGI that for myself. Because there is nothing I enjoy more than shock and awe through a simply new twist in perspective.

      2. Matt Zagaja

        It was interesting, especially when he claimed that the NSA could turn a cell phone that was turned off, on. It sounded rather implausible to me that if the radios were not communicating that it would be technically possible. It seems most of the technical experts online think that they might only be able to do this after exploiting the phone in other ways:….

  20. Emily Merkle

    Code is intellectual property.

    1. Emily Merkle

      …belonging the the employer, not the coder, as long as said coder is compensated for coding by contractor or employer.However – how does this apply to open source?

      1. PrometheeFeu

        The person who creates the code owns the IP unless they assign it to another. (I.e. Work for hire)

  21. Salt Shaker

    Evaluative criteria: context, intent and end result

    1. Emily Merkle

      Intent has nothing to do with it. You publish a book; someone lifts your work and posts it on their blog uncited – that is plagiarism on the same level as Shia LeBouf.

      1. Salt Shaker

        Intent to defame, defraud or libel I think certainly does have relevancy.

        1. Emily Merkle

          You cannot retroactively protect code once an intent – with or without execution – to defame, defraud, commit libel – has been established. You either protect the code or you don’t.

          1. Salt Shaker

            Code is a form of speech just like any other language. The relevancy of free speech as it relates to code can only be evaluated in the context of its intended use, how it ultimately was used, and the net effect of that use. Of course, I’m (thankfully) not a lawyer, nor do I even have 6 weeks of law school training (like Andy Swan)

          2. Emily Merkle

            so…under those terms, the Russion botnet takedown was a breach of justice?

          3. Emily Merkle

            Nothing was proven definitively about how is was used/why/net effects. I know that world by necessity. Sophisticated. Two steps ahead of the entire security community. Instead of “saving” harmed targets, that “bust” actually vastly disrupted a very lucrative – for both business and consumer – industry, that laid waste to entire companies and shattered many others. the legal precedent and burden of proof here is flimsy at best.

          4. Salt Shaker

            Not at all. The botnet case is hardly a free speech issue. The indictment accuses cyber criminals of spreading malware viruses and stealing more than $100 million from businesses.

          5. Emily Merkle

            How did they steal money?(seriously ­ i know this area, I am curious as to what your take is)

          6. Emily Merkle


          7. Salt Shaker

            It’s an indictment, not a conviction. The Justice Dept obviously has enough evidence to indict, but the depth of that evidence is unknown to me (and to you). Our system of Juris Prudence is certainly imperfect and hardly infallible, but it’s arguably the best in the world, although this case is more symbolic than anything else as it will never go to trial. (Putin’s still LOL.) I can tell you that I personally was a victim of identity theft ($99k) that was traced to Russian hackers. So am I a bit biased here? Yes, but your question regarding alleged evidence infers this is some sort of witch hunt, which, in all due respect, is a bit ridiculous.

          8. Emily Merkle

            I speak of this because I know the black hat trade. I will spare you the details, this board would likely think my niche is too lowbrow for these quarters. (far from it). Viruses cannot “steal” money from businesses. It is quite a bit more convoluted than that. And the fact is – there are great economies of scale legitimately and transparently built around the quite sophisticated industry of, predominately, Russian and Eastern European “bot slingers” to use casual parlance – they are not “viruses” – rather, malware. To say “malware virus” is an inaccurate pseudo-redundancy. The trail of accusation is complicated. Hence the complication in reaching definitive judgement from accusation. These guys are good. And bad. Lots and lots on money at stake. And – many of these players also operate truly legit operations as well. The best are industry vets, true professionals. Even slinging bots, if you make the proper deal setting the proper expectations, dotting i’s and crossing t’s – there is demand on the up and up. Very intriguing….

          9. Salt Shaker

            So you’re suggesting the gov’t would have a hard time proving its case. Perhaps so, but what’s your point? Again, this is an indictment not a conviction.

          10. Emily Merkle

            (Waaay belabored) 😉 point – there very well may be no case there. So no intent. So the code – the malware – with no intended ill-will or malice of forethought : de facto protected free speech. Perhaps a further discussion of what bits actually do – a wide array – would clarify their possible classification under the protection under discussion herein.BRW – sorry about ID theft. Coulda been worse, tho 🙂

  22. Gueat

    was there a particular law or regulation that was being discussed?

  23. leapy

    This is one of those classic AVC instances that make this place wonderful.Fred asked a fairly closed question seeking case law on protection or non-protection of code as speech and the place explodes with brilliant comments ranging way beyond “the brief” triggering all kinds of discussion.This is why I visit every day (but very rarely comment).

  24. John Delaney

    Taking a step back, to the extent code in any way infringes on someone’s property rights (e.g., the rights of a software company in a product it licenses, the rights of a corporation in information on its servers, etc.), I have a hard time believing that this supreme court would bat an eye at government restrictions on that code. The current court has a more limited view of what government can properly do, but I think it’s fair to say that protection of private property rights are at the core of their philosophy of government. As a result, despite the fact that obviously not all code would infringe on property rights, to me it seems that anyone challenging a government regulation of code will have to deal with this question, and it will be an uphill battle.

    1. PrometheeFeu

      The court has long said that speech which causes imminent lawless action can be banned under the 1A. Giving people code to break DRM certainly should qualify.

  25. Rick Colosimo

    To clarify a bit, and to reinforce the few correct answers below (and to hat-tip the “Code is Spanish” poster for getting so darn close): Ruby or PHP may be Spanish, in which case the point is irrelevant to the question. Code, as an expression of something, is speech. Yes, it’s protected speech in the context of the First Amendment, which entails some very specific limits (however unclear we are sometimes about which side of the line particular speech falls on). Using that code to do something means you are no longer speaking, but acting. Acts are almost always not speech (the arts – dancing – are a major exception).Someone wrote code? That’s speech and it should not be, by itself and without more, prohibited unless it falls into the other categories (fighting words, obscenity, slander/libel, etc.). That’s why although I’m fine with blowing up people who like to kill American soldiers, I think that the US government should not prohibit the showing of those heartbreaking videos; I don’t think that [safely] burning a flag should be illegal. Regulate the act, respect the speech.Writing a program to take down the power grid is a pure act of speech. If it is part of a conspiracy to actually do that, it’s the conspiracy that gets you in trouble, not the code itself standing alone.There’s much more to be said about speech, but that has little to do with code, so I’ll stop here.

  26. Matt Zagaja

    There is a start-up for legal research called CaseText that is great to use to explore this question:…Universal City Studios v. Corley seems to be the most cited federal case on the issue. Since it’s in the Second Circuit Court of Appeals it is only binding in that jurisdiction, other federal courts can decide to disagree, but they will consider what the second circuit says in making their decisions.… (AVC members can even annotate the case at CaseText). This specific paragraph is particularly on point:…The entire opinion is a great read and was covered in my IP classes.

  27. ZekeV

    Code may be a medium for speech, there’s no question about that. I suppose the hard and interesting question is, what about the functional element of code. If code is speech, then a constitutional court considering a legal limit placed on code would ask whether the law uses the least restrictive means to achieve a legitimate end. So for example, P2P networks may be used for illegal purposes to share copyrighted works without the permission of the author. If the legislature passed a law that outlaws bittorrent with the aim of preventing copyright infringement, could a user win a lawsuit on the grounds that this is an overly broad restriction on functional speech?

  28. Roland Turner

    The 6th and 9th circuits have both held that [source] code can be protected speech:…Both cases related to the export of cryptographic software.Also relevant – but never tested in court – is Zimmermann’s turning cryptographic code into a widely-recognised form of speech in order to export it: the PGP source code was exported as a printed book.

  29. LE

    A candidate said that he believes coding is speech and so applications should be protected like speech is protected.Well of course I know nothing at all about this candidate in particular. But the above statement, to me, is a reminder of how certain people are thinking, contemplating, and fighting all sorts of things that aren’t germain to the job at hand. Which at a young age should be totally focused on getting a job.Is making a statement like that somehow viewed as being deep and creating a halo that makes one actually jump up in the review process? (Yes! This is the guy we want). [1] Or as someone who has their head up in the clouds?[1] The guy with the guitar, appears deep, and gets your daughter in her first year of college.

  30. LE

    Is Coding Speech?Sounds like something that Scotus will eventually spend time on while rome burns.

  31. Ray L.

    I think there are two aspects of code relevant to this discussion. First, code is the expression a person’s (or a group of people’s) thought process. It comes from the creative mind and is expressed in language form. I believe this expression should be protected under the First Amendment. Second, code is compiled/interpreted by a computer and its logic is converted into action during runtime. I don’t think this aspect should be protected under the First Amendment. So the expression is protectable, but the interpreted action is not.To draw a parallel: If someone really hated a group of people, the First Amendment protects their right to express their hate through language. But if that person then took action to actually harm the people he/she hated, then the First Amendment should no longer apply.

    1. Emily Merkle

      May I inquire – what odes “interpreted action” mean?

      1. Ray L.

        “interpreted action” means action that is derived from the logic of the code. So it’s whatever action that results directly from running a piece of code on a computer.

        1. Emily Merkle

          sooo….anything from placing an ad to rolling video to transmitting data via API? Why would that be separate from the basis of the action? It is the expression of the sentiment, if you will. The poetry borne of the muse.

          1. Ray L.

            If the sole purpose of the code is to enable free speech, then we have a special case where the code, while running inside a computer, should be protected like free speech. But that running code is still different from the standalone code originally created by the software programmer in that the two represent separate expressions of free speech.To use a real world example: Say I wrote two books. Book One is about how to rob a bank. Book Two is about how to organize a peaceful protest. My freedom to express myself through those two books should be protected under the First Amendment. But if someone uses the knowledge from Book One to rob a bank, that action is not protected under the First Amendment. If someone uses the knowledge from Book Two to organize a peaceful protest, then that action should be protected, but the act is still different from my original expression through the books. This seems obvious when applied to books. The challenge with code is that expression of code is inexorably tied to the running of code. To have the right perspective for First Amendment purposes, I think we need to separate the two.

          2. Emily Merkle

            That applies if you refer to code strictly in the context of the purveyor of information. Vide can do a helluva lot more than that.

          3. Ray L.

            Usually when we talk about free speech, we refer to the freedom of the purveyor of the speech. So here I’m assuming we’re assessing free speech for the writer/purveyor of the code.What do you mean by “Vide”?

          4. Emily Merkle

            By “vide”, I clearly mean, “my brain gyrates so quickly that my fingers cannot keep up so that ‘code’ morphs into .. a secret fraternity code word”.

  32. Salt Shaker

    It’s an indictment, not a conviction. The Justice Dept obviously has enough evidence to indict, but the depth of that evidence is unknown to me (and to you). Our system of Juris Prudence is certainly imperfect and hardly infallible, but it’s arguably the best in the world, although this case is more symbolic than anything else as it will never go to trial. (Putin’s still LOL.) I can tell you that I personally was a victim of identity theft ($99k) that was traced to Russian hackers. So am I a bit biased here? Yes, but your question regarding alleged evidence infers this is some sort of witch hunt, which, in all due respect, is a bit ridiculous. (Meant to post as a reply to Emily Merkle Snook…Will re-post below.)

  33. Jonathan Peterson

    Regardless of arguments made here, source code has been found to be free speech every time it’s been tested in court. Junger v. Daley and Bernstein v. United States, both found that encryption system source code was speech, stopping the US DoJ’s prohibition of distribution of strong encryption systems. Publishing that code was in violation of the International Traffic in Arms Regulations, which made that speech illegal. (there was extensive civil disobedience in the form of tshirts and tattoos with the RSA encryption algorithm prior to the court findings).Similar cases involving the publication of the DVD decryption algorithm DeCSS were also preceded by civil disobedience.

  34. Chris Lamprecht

    As Chris Peterson pointed out, the Daniel J. Bernstein case is relevant:…The court found that the [cryptography] code was indeed protected free speech.I also remember seeing people wearing T-shirts with some Perl code that intentionally violated the old crypto export restrictions. They would wear them when they travelled out of the US as a protest to the restrictions.

  35. amac

    Like Chris Peterson’s comment and sad I don’t have more time but, just to add that speech laws are national / subnational so just as Chris says that there isn’t one answer to the question in the US that’s also true outside. In each case, each jurisdiction has a different view of the tension between freedom of expression and other laws which can impact what is viewed as expression and whether, even if the thing is expression, whether it gets protected.A case worth reading regarding “algorithms as speech” is SearchKing http://www.internetlibrary…. (tldr; they can be, Google’s ranking algorithm is likely protected opinion). And, interesting that here the code/speech may be a platform for speech.-Alex PS Love that this is from an interview of an analyst at USV.

  36. harris497

    Coding is a product of one’s labor/intellect/creativity, as such it should be protected as intellectual property is protected. To do more is to open the doorway to malware, etc., as a form of protest or political “speech.”

  37. anonymouse

    In the security community, this has a long history. In the 90s, there were the laws preventing export of cryptography. So, you couldn’t export crypto code. But, you could write it down and US Gov can’t prevent you (first amendment pretty clear on that). So, people would just print out the code and carry it across the border. Or, I believe the Perl version would fit on a tshirt. Finally, the courts decided it was See Bernstein vs. United States:…(BTW, DJ Bernstein was a student at UC Berkeley when this occurred. And many of the articles on Wikipedia on Cyberlaw cases are fantastic because of the work of Prof. Brian Carver at UC Berkeley, whose class assignments are basically “write or make awesome the following case’s wikipedia article”).This issue has started coming up again because of the recent trend of selling exploits. E.g., Vupen is a company that will sell you a remote exploit for Google Chrome for (say) a million dollars. Is that speech? Or should we regulate it? Many people equate such exploits (which are used to attack users) as weapons and say it should be regulated. BUT, these are the same people who a decade ago said “code is speech and you can’t regulate my crypto code from export”.This has led to a lot of arguments internally in the security community. EFF, e.g., only wants the US government to commit to not buying or selling exploits, but continues to believe that what companies like Vupen do is protected by the first amendment. Chris Soghoian at the Center for Democracy and Technology believes that what Vupen is doing should be regulated.And then, many in the security community disagree and want no regulation on this, arguing that it is all speech—even the exploits. It is the people USING the exploit who are violating the law/ethics, not the people building the exploits. The concern is also that regulating exploits is a slippery slope that can very quickly lead to regulating all security research and we really don’t want that. (history has a bunch of reasons why, but I don’t think you want me to go into that).Anyways, this was much longer than I expected, but tl;dr: I believe DJB vs USA applies and code is speech.

    1. PrometheeFeu

      Not all speech regulations are prohibited. Speech that will most likely result in imminent law breaking for instance could be banned. There is a good argument that selling someone a 0-day will result in imminent law breaking.

  38. Emily Merkle

    There is code that enacts to print – speech – and code that enacts to application – programs/viruses/Etc. Very different animals. At game is speech. Not Apps or malware.

  39. Peter

    Appellate courts in the United States have discussed the notion that Computer code isspeech and is therefore protected under the First amendment. Code expresses bothvaluable information to computer programmers and controls the function of amachine.When interpreting provisions of the Digital Millennium Copyright Act (DMCA), the Second Circuit addressed the “code as speech” question: Universal City Studios v. Corley, {FN191: 273 F.3d 429, 60 USPQ2d 1953 (2nd Cir. 2001)} The case concerned a Web site which had posted a copy of a program called DeCSSthat circumvented the Content Scrambling System (CSS) used to protect movies on a DVD“Communication does not lose constitutional protection as “speech” simply because it isexpressed in the language of computer code. Mathematical formulae and musicalscores are written in “code,” i.e. symbolic notations not comprehensible to the uninitiated, and yet both are covered by the First Amendment. the ease with which a work is comprehended is irrelevant to the constitutional inquiry. If computer code is distinguishable from conventional speech for First Amendment purposes, it is not because it is written in an obscure language…Of course, computer code is not likely to be the language in which a work of literature is written. Instead, it is primarily the language for programs executable by a computer. Whether computer code that gives a computer instructions is “speech” within the meaning of the First Amendment requires consideration of the scope of the Constitution’s protection of speech.” {FN192: 273 F.3d at 445-446}After a discussion of the scope of the First Amendment’s protection for speech,particularly regarding scientific writings, the court clarifies that:”[T]he fact that a program has the capacity to direct the functioning of a computer does not mean that it lacks the additional capacity to convey information, and it is the conveying of information that renders instructions “speech” for purposes of the First Amendment. Instructions that communicate information comprehensible to a human qualify as speech whether the instructions are designed for execution by a computer or a human (or both). {FN193: 273 F.3d at 447-448}”In finding that code is speech it does not necessarily extend an absoluteprotection to it;”Content-based restrictions are permissible only if they serve compelling state interests and do so by the least restrictive means available… and the regulation is narrowlytailored, which in this context requires that the means chosen do not burdensubstantially more speech than is necessary to further the government’s legitimateinterests.” {FN194:273 F.3d at 450} The prohibition on the Defendants’ posting of DeCSS satisfies that standard. {FN195: 273 F.3d at 453-455}”A similar finding that the DMCA did not unconstitutionally restrict free speech was reached in a preliminary ruling in U.S. v.Elcom, {FN196: 203 F.Supp.2d 1111, 62 USPQ2d 1736 (N.D.Cal. 2002)} the criminal trial of a Russian software company that was selling software that enabled users to infringe the copyrights of ebooks. The U.S. Government prosecuted ElcomSoft for violating the “anti-trafficking” provisions of the DMCA.

  40. Henry Glover

    Free speech, religion and right to bear arms were all adopted when they were relevant (despite ones personal options on the topics). Code rights seems like a natural next step considering how relevant it is today. I think trying to protect code via patents and copyright are hacks and is not using those tools as they were originally designed.

  41. Prokofy

    Code is just math.Math is not speech.

    1. PrometheeFeu

      Writing down equations certainly is speech.

  42. Emily Merkle

    Um. it does not have to “do” something. Words on paper do not “do” anything until they are read. Pedophilistic (sp) pornography? Hate speech? The code is dangeros – as is the test – in simple transmission, propagation.

  43. Emily Merkle

    <apologize for=”” (sp)=””>

  44. Emily Merkle

    obviously if the authorities viewed them and apprehended the perpetrator, yes – that would be illegal. I said nothing of the sort that you just conjured.

  45. PrometheeFeu

    No. Hate speech may not be banned under the 1A.

  46. Emily Merkle

    yes. an unread word does nothing. to anyone. if no one reads it.

  47. Emily Merkle

    what is your take?

  48. Emily Merkle

    that is why some people keep diaries. private repositories.

  49. Emily Merkle

    That is akin to saying email is a machine. Or a blog is a machine. Or a website is a machine.

  50. LE

    Well you know already (no doubt) that the mere possession of certain items, whether used, viewed or seen by anyone (including the person who has them in their possession) is enough to get you into legal hot water in a few areas.In other words the idea that something exists in your possession or control (or on your premises) definitely means something.

  51. Emily Merkle

    A website is not speech. It is encoded with speech. Before Guttenberg, there were stone tablets. There were hieroglyphics. Without the tabula rasa – no speech. Without the pyramids – no hieroglyphics. Without code – no website. No WordPress. No Word.No email. No speech.

  52. Emily Merkle

    I used a poor example, in retrospect. If, for example, I have in my possession, say, a video of an illegal dog fight that I staged solo in my back yard – and no one but I have ever viewed it has ever seen it – including any authorities – what does that “mean”? Nothing, legally. Sure, it means I am cruel to animals, but in the eyes of the law – which are not shining here – it is a moot point.Unread words are null.

  53. PrometheeFeu

    On the other hand, fraud is not protected.