Academic journal article Stanford Law Review

The Medium Is the Mistake: The Law of Software for the First Amendment

Academic journal article Stanford Law Review

The Medium Is the Mistake: The Law of Software for the First Amendment

Article excerpt

Is computer software--code written by humans that instructs a computer to perform certain tasks--protected by the First Amendment? The answer to this question will significantly impact the course of future technological regulation and will affect the scope of free expression rights in new media. In this note, R. Polk Wagner sets forth a framework for analysis of this issue, noting at the outset that the truly important question in this context is the threshold question: What is "speech or ... the press"? Wagner first describes two ways that the Supreme Court has addressed the threshold question. One is ontological--focusing on the expressive content of the speaker's conduct or the medium chosen. The second approach is teleological--determining whether the regulation at issue implicates free expression. Wagner argues that the teleological mode--especially as applied to computer software and other new media--is the more likely to be consistently speech-protective, and that the courts that have addressed computer software have mistakenly opted for the ontological, medium-focused analysis. Use of a teleological approach implies that there should be no "law of software," a conclusion that Wagner argues holds the most promise for extending robust First Amendment protections into new mediums of communication.

Each method of communicating ideas is "a law unto itself" and that law must reflect the "differing natures, values, abuses and dangers" of each method.

-- Metromedia, Inc. v. San Diego(1)

There's truth in the old saw that familiarity breeds contempt: nobody goes to Speakers Corner to listen.

-- John Hart Ely(2)

It is Saturday, somewhere in Silicon Valley. Debra, a young computer programmer, is putting the finishing touches on a revolutionary new software product, Lucifer.(3) Written in the programming language known as Java[TM], Debra intends to make Lucifer available to computer users on a variety of popular platforms. An experienced programmer, she understands that programming is a curious mixture of science and art, the pragmatic and the elegant. There is much original thought built into Debra's program, such as her ideas about proper logical organization, or the best language in which to program. But her creativity is highly constrained by the very fact that she is writing a set of instructions to drive a machine. In fact, in order to make the program useful, she must convert the Java code she understands into a language that the machine's processor understands--a process known as compilation. Once compilation is complete, the software can be used to operate a computer in the way in which she intended.

Debra's intent in writing Lucifer is complex. Lucifer is designed to break into--"hack"--corporate and government computer systems. Debra knows that hacking is against the law,(4) but she persists nonetheless for several reasons. First, she believes that the laws against hacking are misguided, serving only to lull corporations and governments into a false sense of security about the invulnerability of their networks. Additionally, she hopes to share her ideas about programming by letting other programmers see and use her work.(5) Finally, Debra hopes to make money by marketing Lucifer software to corporations and governments as a tool for analyzing the strength of their security systems.(6)

Can Debra be prosecuted under a law making it illegal to develop hacking software? Or does Lucifer raise First Amendment questions, limiting the power of government to stop Debra's programming and distribution activities? Hacking is conduct, but programming is at least partially expression. And Debra's creation of Lucifer clearly has expressive motivations, just as Gregory Lee Johnson made his point by burning a flag in Dallas.(7) But does the programming of Lucifer itself--writing the computer software or code--fall within "speech" or the "press" as did Johnson's activity? …

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