Fighting Keywords: Translating the First Amendment to Protect Software Speech
75 Pages Posted: 17 Dec 2004
The ongoing debate over the applicability of the First Amendment to software focuses primarily on whether software is speech, a device, or a combination of both. According to the terms of this debate, if software is speech then the First Amendment fully protects it; however, if software is a device, it deserves no First Amendment protection. I argue that this debate is misplaced because the mere classification of software as "speech" or as a "device" does not end the First Amendment inquiry. I propose an alternative framework in which well-accepted principles of tort law, criminal law, and First Amendment jurisprudence are combined to provide maximum protection for "software speech," while also promoting the public interest in regulating harm. Shaping the precise contours of such a framework, however, will require the resolution of difficult public policy questions raised by the unique nature of software and the Internet.
Keywords: software, law, First Amendment, free speech, freedom of speech
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