Code Is Not Speech
18 Pages Posted: 15 Apr 2016 Last revised: 22 May 2016
Date Written: April 13, 2016
Advocates understand the idea that “code is speech” to create an impenetrable legal shield around anything built of programming code. When they do this they misunderstand, or misrepresent, free speech law (and rights law in general), which rarely creates such impenetrable shields, the principles that underlie that law, and the ways those principles should and might apply to code. The idea that government cannot regulate things because they are made of code cannot be right. That principle not only lacks support in most theories of freedom of speech, but is actively rebutted in the very case law that advocates claim to be marshaling in favor their position. Further, in promoting this position, advocates misrepresent — in a manner it is hard not to see as willful — the very nature of the programming code they care so much about.
Keywords: constitutional law, freedom of expression, ideology, civil rights, technology, human rights, freedom of speech
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