Sixth Circuit Classifies Computer Source Code as Protected Speech: Junger V. Daley, 209 F.3d 481 (6th Cir. 2000)

Abstract

Increasingly pervasive and important digital technologies, because of their technical intricacy, resist easy categorization in existing legal doctrine. Whether computer source code qualifies as protected speech under the First Amendment turns on the source code's expressive and functional qualities. In April 2000, in Junger v. Daley, the Sixth Circuit held that all source code is First Amendment speech because of its expressiveness in conveying ideas about computer programming. The Sixth Circuit's classification of all source code as speech undesirably diverged from Supreme Court precedent. A more faithful analysis would instead have concluded that not all source code is speech under Spence v. Washington's test for symbolic conduct.

Keywords: First Amendment, computer source code, symbolic conduct, Junger v. Daley, Spence v. Washington, protected speech