From Social Friction to Social to Social Meaning: What Expressive Uses of Code Tell Us About Free Speech
University of San Diego School of Law
Minnesota Public Law Research Paper No. 03-4
This article relates social friction to First Amendment theory and doctrine. The article defines social friction as the cost of engaging in one expressive behavior rather than another, and of moving among different types of behavior. Social friction separates social contexts and practices from one another. By separating them, it partly defines and stabilizes them, so courts may use them to relate expressive conduct to free speech values. Social friction is therefore integral to social meaning, and thus to free speech analysis.
Cases involving the Internet distribution of software code exemplify the importance of social friction to free speech analysis. Because code is expressive, courts worry about the First Amendment. Because code does things, such as circumvent technological measures protecting content, they worry about its function. Because posting and distributing code is inexpensive, many people may use code in either a public or private manner, for various purposes, in very little time. Because consumption of code is non-rivalrous, it may be distributed widely among different contexts while remaining active in each of them, which means courts worry that distribution of code may cause significant and present harm even when it is simultaneously used in ways that advance First Amendment values.
For these reasons, courts have had trouble relating software code to free speech values. Using cases such as United States v. Elcom, Ltd. and Universal City Studios, Inc., v. Corley, the article suggests ways in which courts may distinguish uses of code that implicate free speech values from those that do not. It suggests that incitement doctrine be adapted to deal with cases in which free speech interests are at stake. The article concludes with an appendix addressing objections to these recommendations.
Number of Pages in PDF File: 79
Date posted: February 25, 2003