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

Abstract:     
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, I attempt to establish a framework for analysis, noting at the outset that the truly important question in this context is the threshold question: what is "speech or . . . the press"? I first describe two general ways that the Supreme Court has addressed the threshold question. One is ontologically: focusing on the expressive content of the speaker?s conduct or the medium chosen. The second is teleologically: determining whether the regulation at issue implicates free expression. I argue 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 an ontological medium-focused analysis. Use of a teleological approach implies that there should be no "law of software" ? a conclusion that I argue holds the most promise for extending robust First Amendment protections into new mediums of communication.

Working Paper Series