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The First Amendment and Software Speech 194

Posted by timothy
from the hello-world-vs-the-state dept.
First time accepted submitter stanlrev writes "When is software, or content generated by software, 'speech' for First Amendment purposes? That is the question that Andrew Tutt seeks to answer in an article published today in the Stanford Law Review Online. He argues that the two approaches commentators and the Supreme Court have proposed are both incorrect. Software or software-generated content is not always speech simply because it conveys information. Nor is software only speech when it resembles traditional art forms. Instead, the courts should turn to the original purposes of the First Amendment to develop a new approach that answers this question more effectively."
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The First Amendment and Software Speech

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  • by cjonslashdot (904508) on Thursday November 15, 2012 @12:52PM (#41993375)
    I am not a Constitutional scholar (although I have read the Constitution and refer to it frequently), but I would presume that "freedom of expression" and "freedom of speech" are intended to ensure that ideas cannot be censored. And since the Constitution is about the rights of people and government, I also presume that the right pertains to people - not organizations. Organizations are not people, just as a pack of dogs is not a dog and a mob of people is not a person. And not machine generated content: such content is not necessarily the output of people, unless a person arranges for a _specific_ machine output in order to express an idea. If the 1st Amendment is truly about ensuring that ideas cannot be censored, then free speech is not about permitting anyone to say purposely offensive things (i.e., the form of their speech), but about their right to express (perhaps politely) the _ideas_ contained in their speech.
    • by Quila (201335) on Thursday November 15, 2012 @01:00PM (#41993471)

      Organizations are not people, just as a pack of dogs is not a dog and a mob of people is not a person.

      However, an organization is made of people, and do they lose all of their rights as part of the organization? You and a bunch of friends don't like people killing kittens, and you use your full constitutional ights to fight the killing of kittens. To be more efficient, you decide to form an official organization to promote your cause and fight under its mantle. Now, because you did that, you lose your rights, making your efforts less effective?

      For machine generated content, I'll accept that when machines start having original ideas.

      • No having rights granted to a collective doesn't imply that the individuals lose their rights. The individuals are still individuals regardless of what they come together and do.
        • by Quila (201335)

          Under the "organizaitons have no rights" idea, I and my friends can individually spend our money to buy ad time to promote the cause, and we would have the right to do it as individuals. But if we pool our money to buy an ad, we would lose all rights to air it.

          • by AK Marc (707885)
            When you form a formal legal organization to do it, you have additional rules that apply that can affect your right to buy advertising, which don't impair your ability to form an non-organization where 9 people "give" their money to one person, and that one person buys advertising, so long as it isn't construed as a de facto group that is acting in that manner to deliberately avoid other rules.
        • No having rights granted to a collective doesn't imply that the individuals lose their rights. The individuals are still individuals regardless of what they come together and do.

          So unions should not have rights?

          • Only the rights granted to it as a union. That's what keeps getting lost in the "corporations are people" vitriol. Corporations (and unions) have always had certain rights normally reserved for people. Signing contracts, financial identity, ability to be sued. The issue at hand is what those granted rights should be. Though granting unions only those rights held by corporations (whatever those may be) is something most of us can likely agree on. Nice try, though.
          • by AK Marc (707885)
            Unions are the GPL of organizations. If corporations didn't have special rights, unions would not need to use those same rules to form a counter-group.
      • by DarkOx (621550) on Thursday November 15, 2012 @01:12PM (#41993607) Journal

        I agree with your argument but I would also add that because the Constitution also secures a right to assemble, its clear to me at least that an Organization is a first class entity just like an individual. The right of individuals to express themselves by forming an organization and acting as unit should be protected.

        • by dgatwood (11270)

          To a point. Beyond a certain point, however, an organization of people can amass the ability to speak at sufficient volume (both in loudness and in quantity) to effectively drown out dissenting voices. Thus, in order to guarantee free speech for the individual, to some degree, the speech of large groups must be kept in check.

          This applies whether the large group is the government, a PAC, a corporation, a union, or pretty much any other group of people who have united for a single purpose. For example, the

          • by Obfuscant (592200) on Thursday November 15, 2012 @01:45PM (#41994013)

            Thus, in order to guarantee free speech for the individual, to some degree, the speech of large groups must be kept in check.

            You're confusing the right of free speech with the right to be heard. The former is protected, the latter is not. E.g., you have the right to say something. You don't have the right to force me to hear you.

            In any case, this is a very dangerous road to start travelling on. Who decides when "a group" is "too large" to have First Amendment rights anymore? Is George Soros, with billions of dollars, "too large" and likely to have too loud a voice to have the right to use that voice? Citizen's United was apparently "too large" to have the right to free speech, even though they were a corporation formed explicitely for the purpose of making political speech and were trying to buy airtime in the face of a much larger organized political party.

            Commercial speech is not really different from any other speech,

            Yes, it is. Speech trying to sell you something (a product with a price) is much different than someone trying to convince you of an opinion. There is existing case law differentiating the two.

            • "What good is a phone call, if you are unable to speak?"

        • by sjames (1099)

          There is no need for the organization to become it's own legal entity. The individuals assemble as is their right. They arrive at a consensus and then an individual uses his/her own free speech rights to make a statement on the group's behalf.

        • by Hatta (162192)

          It should be protected, but it doesn't have to be facilitated. You retain 100% of your natural rights to free speech and assembly even if the government never acknowledges incorporation. Therefore, regulation of corporations can never infringe on your natural rights. This is the fundamental flaw with the Citizens United ruling.

      • by geekoid (135745)

        " I'll accept that when machines start having original ideas."
        already happening. Emergent behavior, software that rights books and poems.

        If that isn't generating ideas, then you need to define 'idea' a lot better.

        • software that rights books and poems

          Apparently it should have been used to write that comment.

        • by Quila (201335)

          I'm thinking genuine original creative ideas vs. an algorithm that just combines words according to preset rules. I don't think we're quite there yet.

          • by geekoid (135745)

            "thinking genuine original creative"
            You mean like no human has ever done?

            " an algorithm that just combines words according to preset rules."
            you mean like the human brain?

            • by AK Marc (707885)
              Oh, are you one of the "no free will" believers? The human brain is different because it doesn't write based on "preset rules". The human brain makes up the rules as you go. Sure, 100 people may develop the exact same rules based on the same input, but that doesn't mean the rules themselves are "preset".
          • by Holladon (1620389)

            I'm thinking genuine original creative ideas vs. an algorithm that just combines words according to preset rules. I don't think we're quite there yet.

            What's the difference between that and poetry that adheres to existing rules? Is a high school student's perfectly-metered, rhymed poem any less deserving of First Amendment protection than a seasoned poet's taking of creative license, just because the merit of the high school student's poem was purely technical? In fact, language itself is just a set of rules. Creative expression occurs within those rules -- sometimes the creativity comes in breaking them, yes (although even then, you can only break so

      • Yes, is a dilemma. On the one hand, groups of people can do wonderful things. But they can also do awful things. Today the greatest threat to democracy is the power of special interest groups. These groups have agendas of their own, and they act in ways that their individual members might not. It is a real dilemma, and perhaps something that was not anticipated by the Constitution.
        • by Obfuscant (592200)

          It is a real dilemma, and perhaps something that was not anticipated by the Constitution.

          Obviously, prior to the Constitution, there never were such things as unions (guilds) made up of people with common ideas (trades) who might try to influence governments to do things that support them. There were no groups that any of the founders of the US were familiar of, despite the following from here [msana.com]:

          During the late 1700s it was one of the organizations most responsible for spreading the ideals of the Enlightenment: the dignity of man and the liberty of the individual, the right of all persons to wor

          • You are right, there were groups. But today those groups have become extremely powerful. Communication is much more effective today and large groups use it much more effectively than ever before. Manipulation of people has become a science.
            • by Obfuscant (592200)

              You are right, there were groups. But today those groups have become extremely powerful.

              You don't think that Masonry, which claimed Geo. Washington, Ben Franklin, and many other founders, as members, much less as targets to be influenced, wasn't extremely powerful? Or any of the trades or social "guilds" of the time? You're talking about a time when, if you pissed of a trade guild in the city where you lived, you couldn't just get on the web and order what they were't going to provide for you from the next state or country over.

              You don't know about them like you know about the unions today,

            • by geekoid (135745)

              haha. How..cute.

              EITC influenced the world through government 'lobbying'.
              Corporation used massive monopolies to dictate culture.
              Churches control governments to enforce church approved rules.

              The founding father new the perfectly well. Its one reason the was a debate on whether or not corporation should be allowed.

              • You wrote, "Its one reason the was a debate on whether or not corporation should be allowed."

                Really? That's fascinating. I did not know that. Can you point to a reference to this? Is it in some of the Federalist Papers?

        • by Quila (201335) on Thursday November 15, 2012 @02:01PM (#41994251)

          Today the greatest threat to democracy is the power of special interest groups. These groups have agendas of their own, and they act in ways that their individual members might not

          Like unions! They oppose laws that restrict their ability to use their members' money to influence elections even when the beliefs of the union are opposite the beliefs of the member. Unfortunately, for many people quitting the union is not a realistic option due to various laws (no right to work) and circumstances. Members of the NRA or Greenpeace can just opt to not renew. Shareholders in corporations can sell their shares. But union members are mostly screwed.

      • by sjames (1099)

        Of course not. Any individual within the organization can use their own free speech rights to say whatever needs saying.

      • by AK Marc (707885)
        The organization doesn't get an additional voice. The people of the organization are *never* silenced, just them getting a second voice when speaking on behalf of the organization.
    • So you're saying that no algorithm should be censored, only offensive implementations of such algorithms? Perhaps ones that are buggy? That sounds wonderful :D
      • No I am not saying that. I am merely musing about the intent of the 1st Amendment. I think it was about preventing censorship of people by government. If a machine generates something, that is not generated by a person, so it was not anticipated by the Constitution. But there might be a gray area: perhaps a person arranged for the machine to express the person's opinion. E.g., suppose it is a drone vehicle that flies around painting a political message in the sky. The drone is a machine, but the message was
        • by nschubach (922175)

          But compiled code is machine generated. Minified code is machine generated as well. So the only code that could be protected free speech in your case would be source code and/or raw/interpreted code.

        • I was joking. I do appreciate the nuance here.
    • by Hatta (162192)

      then free speech is not about permitting anyone to say purposely offensive things

      "If you can't say Fuck you can't say, Fuck the government."
      Lenny Bruce

      • Yes, our culture equate free speech with art and any form of expression. I am not sure that was the intent. But I don't know. To me, I would value the expression of an idea, such as "the government is corrupt" as much more important than the ability to express it in a rude way such as "fuck the government". But that is my personal value.
        • by Hatta (162192)

          The problem is, the offensive part of most speech is the content, not the form. Is the statement that "non-violent marijuana users deserve to be sent to prison" really any less offensive than "fuck Obama"? I would argue that the former is absolutely more offensive by any rational criterion. In fact, there is nothing that could be censored that would offend me more than the act of censoring it.

          Censorship itself is offensive, and if you use offense to justify censorship you have to take that into account

          • Yes, you are right in a sense, in that the former violates a sense of fairness and rationality. It is offensive for that reason - the idea is offensive as you say - whereas the second is offensive because it is a pejorative. There is a difference. But then again, censorship of pejoratives would silence a great amount of valuable literature and art.
            • by Hatta (162192)

              the second is offensive because it is a pejorative

              Which is only offensive if you choose to view it as such. What's the difference between "Fuck Obama" and "Obama is a bad, evil man"? The sentiment is the same, just the word choice is different. So why is the first word unacceptable? Because your mommy told you it was bad? Is that all?

              "bad words" aren't bad. It's the people who believe that "bad words" exist who are bad people. We have much more important things to deal with than word choice. Quit b

        • by readin (838620)
          Regardless of whether you use foul language when expressing your idea, so long as you use words it should be ok. If you want to use the words "F--- the government" instead of "the government is corrupt" that's fine. However if you want to use a knife on a politician instead of saying "the government is corrupt" then we have a problem. If you want to stage a play where you have someone pretend to slash a throat then you're probably ok but when you start defending "art" you have trouble drawing the line.
          • Sex for money should not be illegal. It is an overreach of local government in my opinion. It is between two consenting adults. The government has no legitimate business in it, just as the government has no legitimate business telling someone they cannot use drugs. Should Keith Richards have been prevented from using drugs? Perhaps then he would not have written such great music. It is his choice. I don't choose it myself, but who am I to say that someone else should not choose it? As long as they don't hur
            • by readin (838620)

              Sex for money should not be illegal. It is an overreach of local government in my opinion. It is between two consenting adults.

              That's a reasonable position to take, but should it be constitutionally protected? Is it in the same class of rights as the right to free speech, a fair trial, freedom of religion and the right to vote? Is the viability of a constitutional republic in danger if it is outlawed?

              The libertarian philosophy is wonderful and I generally agree with it (though for practical reasons I don't always agree with it). However I think the libertarianism needs to be a cultural value that is then reflected in the laws

            • Sex for money should be legal, and regulated. Making it illegal doesn't do anyone any good, because it still happens in sufficient amounts of places that the law itself is non-effect. If prostitution were legal, then we would be able to license workers, require them to carry sufficient health and liability insurance, keep proper records of clients that the negative effects (if any) are mitigated significantly. At this point, government cannot mitigate anything, except by "crackdown".

              • Client: Hey babe, how about it?

                Prostitute: Oooooo, sure thing, darling! But fiiiiiiiiiiiiiirst, I'll need you to sign this consent form and will need you to fill out your health insurance information on these following papers. I'll also need you fill out this form and sign it, which states I'm permitted to view your medical records. Here's a pen and a clipboard, now go have a seat and after you're done and return them I'll get right with you as soon as I can verify the information.

    • "tended to ensure that ideas cannot be censored."

      We already have that with copyright law and intellectual property, the corporations have essentially defeated certain forms of culture from ever appearing (i.e. no public domain anymore). For instance one might ask why one cannot repair old software or why customers can't own games and get source-code for old (no longer sold) games for instance so fans/customers can fix up and pass them no to future generations. These things should be in a library after x m

      • Indeed. The 1st Amendment protects us from government, but who protects us from powerful groups, such as companies, unions, etc.? We really need a supplemental "Bill Of Rights" to address organizations of people and how individuals are protected from those organizations. You are perceptive, that so-called intellectual property is the currency of power of the 21st century, and will be the primary instrument of oppression. We are seeing it take shape now. Small startups are hard pressed to create _any_ produc
    • by eldavojohn (898314) * <eldavojohn AT gmail DOT com> on Thursday November 15, 2012 @01:16PM (#41993661) Journal

      And not machine generated content: such content is not necessarily the output of people, unless a person arranges for a _specific_ machine output in order to express an idea. If the 1st Amendment is truly about ensuring that ideas cannot be censored, then free speech is not about permitting anyone to say purposely offensive things (i.e., the form of their speech), but about their right to express (perhaps politely) the _ideas_ contained in their speech.

      I'm no constitutional scholar either but I feel you are proposing very subjective measurements. Once it gets to the point of you deciding what is and isn't protected free speech by way of how nice, specific or worthwhile you are pretty much censoring based on what you personally feel is or isn't acceptable!

      Right now, we don't actively censor people who wish to yell "FIRE!" in a crowded theater. For what if there was a fire in said theater? Instead, we let everything be said and then if it is felt that libel, slander, criminal intent, death threats, etc were said, you may bring it to the attention of a court of law. Even those make free speech an uneasy topic but they have tried to codify those conditions as best as possible.

      Imagine a judge determining what is "nice" enough to leave up and what is "purposely offensive" enough to take down. If some heavy metal band wants to write a song that consists entirely of cursing and intercourse references and other people enjoy said music, who am I to demand that be taken down by how offensive it is?

      Free speech is about free speech. Not ideas, not being nice, not worrying about offending some prude. There are laws that are applied after the fact but you should be able to say whatever you want! Did we not just cover this in the last story [slashdot.org]? Look at the UK and how absurd some of their free speech cases are! They must decide what is "grossly offensive" and what is "merely offensive" to determine if someone goes to jail!

      • I agree it is a slippery slope. But there actually are standards. E.g., one cannot libel someone. And if you yell "fire" in a theater and there is no fire, you will be kicked out. But you are right that we must be careful about such standards because they can indeed be used to censor ideas. The censorship of ideas and of whistle-blowing are the main concerns in my opinion.
        • Re: (Score:2, Insightful)

          by Anonymous Coward
          Again, for your benefit: Libel is a standard. Loss of money can be proved. Loss of life can be proved. In the case of "fire" in a theater, lying can be proved.

          However: Nice is not a standard. Specificity is not a standard. Offensive cannot be proved.
        • And if you yell "fire" in a theater and there is no fire, you will be kicked out.

          It's kind of a shame that things have changed so much that this phrase has lost all meaning. (Well, I mean, it's good that our fire codes have improved so a fire isn't so insanely dangerous, but I digress.) Yelling "fire" in a crowded theater is about annoying people, or even causing a panic. It's about killing people. Sometimes dozens of people. Several hundred people crammed into a dark, fabric filled room (not to mention all the flammable clothing) with a single exit? Lot's of people died in fires

          • by tlhIngan (30335)

            It's kind of a shame that things have changed so much that this phrase has lost all meaning. (Well, I mean, it's good that our fire codes have improved so a fire isn't so insanely dangerous, but I digress.) Yelling "fire" in a crowded theater is about annoying people, or even causing a panic. It's about killing people. Sometimes dozens of people. Several hundred people crammed into a dark, fabric filled room (not to mention all the flammable clothing) with a single exit? Lot's of people died in fires in tho

        • by moeinvt (851793)

          "... if you yell "fire" in a theater and there is no fire, you will be kicked out."

          If you stand up and start reciting the "I Have a Dream" speech in a theater you would probably be kicked out as well.

          Justice Hugo Black brilliantly deconstructed this "fire in a theater" nonsense. Sure, there would be consequences, but the consequences stem from the fact that you are violating the rights of the theater owner and the other patrons. It's not a limitation on the freedom of speech. The same reasoning would ap

      • Right now, we don't actively censor people who wish to yell "FIRE!" in a crowded theater. For what if there was a fire in said theater? Instead, we let everything be said and then if it is felt that libel, slander, criminal intent, death threats, etc were said, you may bring it to the attention of a court of law.

        Punishing someone for speech after the fact is still censorship. In fact, censorship in practice, at the level of law, consists almost exclusively of punishing someone after the fact for unwanted speech. The presumption that speech involving libel, slander, etc. will be met with punishment is no less censorship than the presumption that speech criticizing the government will be met with punishment.

        Libel and slander are not properly a matter for courts. First, one does not have a right to one's reputation, w

        • Libel and slander are not properly a matter for courts. First, one does not have a right to one's reputation, which would amount to a right to how other people think of you. Damage to your reputation is thus not something you should have legal standing for. Second, suing over libel or slander is counter-productive; it serves only to show how much you want to shut someone up. The more force you bring to bear against someone defaming you, the more credibility you lend to their statements. If the defamation is true then the damage to your reputation is deserved; if not, then the correct response is to educate and persuade, not to make threats.

          I disagree. You are assuming relative equality between the parties, which is often not present. There is disparity in people's ability to communicate TRVTH. If I am slandered by Citizen Kane, my chances of correcting peoples impressions are nil to none. Further, your position assumes and equality in skill of presentation. Consider Rush Limbaugh or Barrak Obama disparaging you publicly. Like them or not, they are persuasive speakers. You are unlikely to be able to compete with their presentation skill

      • Free speech is about free speech. Not ideas

        I dare you to speak without any idea of what to say. Speech is the method by which ideas and information are conveyed...
        Are you, by chance, Pentecostal? [youtube.com]

    • by geekoid (135745)

      Incorrect:
      " If the 1st Amendment is truly about ensuring that ideas cannot be censored, then free speech is not about permitting anyone to say purposely offensive things "
      yes, it does.
      Many people find speech against them is offensive.
      Church's always find any speech that doesn't agree with them to be offensive.

      You should read the federalist papers, and other documents the founding fathers wrote. Also understand formal written speech of the time. It's enlightening and give the Constitution context.

    • So how do you reconcile this eventual outcome:

      Corp A: newspaper
      Corp B: movie studio
      Corp C: social cause organization.

      Can the government censor Corp A? Can they censor Corp B? Can they censor Corp C?

      If the government can censor Corp C but not B, what if corp C produced a movie for their cause?

      In your attempt to exclude organizations from inheriting the rights of the people who make up those organizations, you end up granting the government the authority to censor individuals by granting authority over all

      • Yes, I agree. I don't know the solution. I only know that there is a problem. Perhaps it comes down to holding accountable the individuals who make decisions within organizations. After all, every communication by an organization is initiated by an individual. The problem is that organizations have aggregated power, and they are single-minded in their mission, whereas individuals can weight social benefits versus personal benefits. Organizations tend to be amoral - even sociopathic - and are therefore not "
        • by BeanThere (28381)

          organizations have aggregated power, and they are single-minded in their mission

          Wow - you've never really been a shareholder or member of any real organization, have you? You'd know that the moment you have more than one person, you already start having disagreements. Trying to get large organizations to *appear* like-minded (to give the false illusion of being like-minded) is one of the most monstrous challenges in being a part of the management/ownership of such organizations.

          Organizations tend to be a

          • BeanThere wrote, "Wow - you've never really been a shareholder or member of any real organization, have you? You'd know that the moment you have more than one person, you already start having disagreements."

            I have. I was on the board of the company that I founded some years back. But I understand your point. You are right that shareholders debate and don't agree on the mission. But my point was that it is not one person one vote. The more stock you have, the more votes you have. Thus, a corporation is domin

    • by readin (838620)

      I am not a Constitutional scholar (although I have read the Constitution and refer to it frequently), but I would presume that "freedom of expression" and "freedom of speech" are intended to ensure that ideas cannot be censored.

      I think the term "freedom of expression" is one of the big problems in figuring out how to apply the First Amendment to software. If we took the original text which said "freedom of speech" and "freedom of the press" we would see that it originally applied almost exclusively to words. When you speak, you speak words. When you print, you print words (ok, there were a few would cut pictures). The writers knew about things like music, paintings, sculptures and plays but did not choose to include them in t

      • Yes, I suspect it was about expression of ideas. Certainly ideas are the foundation of everything else, so protection of freedom to express ideas must be the core protection. Then again, ideas are often best expressed graphically....
      • I think they're focus was on words and not on things like artwork (which they knew could be obscene).

        Are you implying that they didn't know that words can be just as "obscene" as artwork?

        Also, people may speak exclusively in words, but a printing press can just as easily print graphics as words. You mentioned the possibility of woodcut illustrations yourself. Freedom of the press must naturally extend to printed images as well as printed words. Recorded audio had yet to be invented, of course, but lyrics and printed sheet music would have been covered, as would the scripts for plays. Sculptures were omitte

        • by readin (838620)

          I think they're focus was on words and not on things like artwork (which they knew could be obscene).

          Are you implying that they didn't know that words can be just as "obscene" as artwork?

          Also, people may speak exclusively in words, but a printing press can just as easily print graphics as words. You mentioned the possibility of woodcut illustrations yourself. Freedom of the press must naturally extend to printed images as well as printed words. Recorded audio had yet to be invented, of course, but lyrics and printed sheet music would have been covered, as would the scripts for plays. Sculptures were omitted, true, but that seems more like an oversight than deliberate intent.

          Finally, it would not be sufficient to show only that the 1st Amendment only covers words; you would also need to point out where in the Constitution any branch of the U.S. government is granted the power to censor images, music, plays, sculptures, or the formal descriptions of algorithms colloquially known as software.

          In terms of federalism I agree with you. If anyone is going to be censoring the software artwork it should be the states rather than the federal government.

          As for recorded audio, sheet music and scripts for plays - I think the words are covered by the first amendment. So the lyrics and the script could not be censored. You can make a very good argument that the sheet music also should not be censored (they are instructions for playing the music, not the music itself). But in this interpretation of th

          • by readin (838620)

            I think they're focus was on words and not on things like artwork (which they knew could be obscene).

            Are you implying that they didn't know that words can be just as "obscene" as artwork?

            Also, people may speak exclusively in words, but a printing press can just as easily print graphics as words. You mentioned the possibility of woodcut illustrations yourself. Freedom of the press must naturally extend to printed images as well as printed words. Recorded audio had yet to be invented, of course, but lyrics and printed sheet music would have been covered, as would the scripts for plays. Sculptures were omitted, true, but that seems more like an oversight than deliberate intent.

            Finally, it would not be sufficient to show only that the 1st Amendment only covers words; you would also need to point out where in the Constitution any branch of the U.S. government is granted the power to censor images, music, plays, sculptures, or the formal descriptions of algorithms colloquially known as software.

            In terms of federalism I agree with you. If anyone is going to be censoring the software artwork it should be the states rather than the federal government. As for recorded audio, sheet music and scripts for plays - I think the words are covered by the first amendment. So the lyrics and the script could not be censored. You can make a very good argument that the sheet music also should not be censored (they are instructions for playing the music, not the music itself). But in this interpretation of the first amendment the performance of music and plays would not be covered. Recordings of people reading the script or music would of course be covered. But the state would be able to restrict performance of certain tunes or certain musical instruments. And the state would be able to restrict doing certain actions as part of a play. But the restrictions couldn't be based on the words or lyrics. Of course in practice very little would be prohibited because voters wouldn't put up with it.

            And no, I don't believe words can be just as obscene as artwork.

    • by readin (838620)

      I also presume that the right pertains to people - not organizations. Organizations are not people, just as a pack of dogs is not a dog and a mob of people is not a person.

      The First Amendment says (emphasis added):

      Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

      An organization is a peaceful assembly of people.

      • An organization is a peaceful assembly of people.

        Yes, and people have the right to assemble peaceably into organizations. That doesn't mean that the organization has rights. The people making up the organization have rights, which they can exercise on behalf of the organization.

        (Of course, the same principle says that a government, as one form of organization, does not have rights per se; only the members of the government have rights, as individuals. A person acting on behalf of a government thus has no special right to act in ways which have not been ex

    • So far, the only thing on earth that can "Speak" is a person. Organizations are not only made up of people, but when they state things, someone had to write or speak that. Now you could argue that the individual speaker retains those rights, and the org does not... but the rights still exist. You can not, for example, prevent organizations from producing political adds. This was always unconstitutional... and it just took a long time for the court to finally address it. Does this right create huge problems?
    • by westlake (615356)

      And since the Constitution is about the rights of people and government, I also presume that the right pertains to people - not organizations. Organizations are not people, just as a pack of dogs is not a dog

      "The cheese stands alone."

      People organize because they are sociable. They organize because they have needs and values in common. They organize because there is strength in numbers. They organize because they neded able and effective advocates.

      Freedom of Speech and Freedom of Association are profoundly connected.

  • by destinyland (578448) on Thursday November 15, 2012 @12:56PM (#41993441)
    I was really surprised there were almost no comments on this story...
  • speech (Score:4, Insightful)

    by phantomfive (622387) on Thursday November 15, 2012 @01:01PM (#41993477) Journal
    Some courts go by the rule that if something is used as an attempt to communicate, then it is speech.
    Other courts have gone by the rule that if it transmits information, it is speech.

    I prefer the first rule, but this guy doesn't like either. He thinks that if something is generally accepted by society to be a method of speech, then it is speech.

    He seems to come to this conclusion because in that case, he assumes software like word processors, servers, operating systems, etc, are not free speech.

    Personally I prefer the courts that say if something is an attempt to communicate, then it is speech. A word processor is not an attempt to communicate, it is a tool. The source code of a word processor, however, most definitely IS a communication. It's not clear the poster understands the difference between source code and binaries.
    • by Quila (201335)

      A word processor is not an attempt to communicate, it is a tool. The source code of a word processor, however, most definitely IS a communication

      Source code communicates to a compiler how the compiler is supposed to function. But a binary communicates to the operating system and hardware how they are supposed to function. The binary is effectively your original communication interpreted into a different language, which, if it were a book, would be covered. Also, it is possible to write the machine language

    • the difference between source code and binaries.

      I can write software in machine code. Now what's this difference you're on about?

    • by Kjella (173770)

      I'll go one better and dismiss all three. To take his definition first, if I were to send a referee software for the legally blind it would surely be considered an act of expression even though distributing software in general is not, so that is clearly insufficient. If I was rolling my eyes as the Great Leader hymn was playing then clearly that was an act of expression even though I didn't mean it as an attempt at communication, so that definition is insufficient too. Finally not answering the question "Yo

  • I think the answer to this question is best summarized by a quote from Hellraiser II:

    "It is not hands that summon us - it is desire."

    So it is with speech. Speech is present only by its intent.

  • If someone writes a program that facilitates the creation and retrieval of information, how can the program not be protected under the rule that “information is speech”? It seems that if we take the Sorrell approach, no software will ever be regulable—all software will be protected speech.

    The code (and output) might both be considered protected speech.

    The famous antitrust judgment finding Microsoft liable for excluding Netscape from Windows would have come out the other way, dismissed as inconsistent with Microsoft’s First Amendment right to convey information as it wishes. Apple’s wish to exclude disfavored books from the iPad eBook reader, or banish Adobe Flash from its iPhone browser, would simply be Apple’s speech.

    But in both of these cases we're talking about monopolies -- either market-wide or specific to a particular device.

    If consumers had the ability to jailbreak their Apple hardware and install whatever they wanted on there, or move any content OFF of there (SCOTUS is chewing on First Sale doctrine @now), then Apple's right to protection under Ammendment numero uno wouldn't give them carte blanche to get up in our business and do the hokey pokey al

  • Why does software need free speech? I don't understand how that would help it, it someone would like to explain that to me great.
    • Why does software need free speech?

      say( "Well, it doesn't really, if they just amend the 2nd amendment." );
      say( "IMO, it should be ''right to bear technology'' not ''right to bear arms''." );
      say( "Some of my software has been classified by the USBIS as though they were munitions..." );
      say( "Failing a 2nd amendment exemption, the 1st amendment should be applied." );
      say( "Otherwise, I can be prevented from freely expressing myself via my source code." );

    • by Hatta (162192)

      Software doesn't need free speech. Authors of software need free speech.

  • The First Amendment also prohibits violation of the freedom of the press--which when written, referred to the technology of publishing, and not just to the profession of journalism.

    A computer is a press in the sense meant by the First Amendment.

  • It shouldn't matter whether something was written by you, another person, software or a monkey with a typewriter. It's the parties that take part in the communication that are responsible for it. If we make a distinction, we will see lots of people evade responsibilities putting the blame on computers ("I didn't hack that company, a script that I've written did.").
    Free speech shouldn't depend on how the speech in question was created. I can't help but feel that this is just another attempt to criminalize Go

  • Leave it to legislatures to make a simple rule regarding freedom much more complicated than it really needs to be.
  • May be this is how we beat the insane software patents. Declare them as speech. Give the programmers first amendment protections. Then at best software can be copyrighted. So all software patents would become invalid! hooray!
  • Software is basically just a set of instructions. I don't see how it could be anything but protected speech. How the software is used is something else altogether.

    I think the relevant example is the "Hitman" case. A company published an instruction manual for how to commit a murder/ assassination and someone used the info in the book to commit a murder. Obviously murder is a crime. Is the publisher of the instruction manual guilty however?

    They got sued by the victims' families. Unfortunately, the publ

  • The author is trying to create a problem where there isn't one.
    Software is speech.
    Software is speech because it is text.
    The kind of text that comes off of printing presses.
    If freedom of the press means anything, it means the freedom to print
    #include <stdio.h>
    void main()
    {
    printf( "Hello, world\n");
    }
    Translation to x86 assembly and thence to machine code is inessential and does not affect the legal principle.
    Neither does recording the resulting bits on machine-readable media.
    • by BeanThere (28381)

      You have violated Apple's "hello world" patent with this comment, please take it down.

      If software is speech, then wouldn't patents violate the 1st amendment?

  • A computer is a tool (Score:3, Interesting)

    by davidwr (791652) on Thursday November 15, 2012 @04:42PM (#41996177) Homepage Journal

    Just about any information-processing software can do a person or team could do if they had infinite time and storage space.

    Perhaps it would make more sense to look at "computer-generated" speech as if a person or team of people was "running the algorithm" and presented the result to the person asking for the data.

    For example, if in the pre-computer, pre-health-privacy era my boss asked me to give him a report of what doctors had prescribed what drugs in the state for the previous year, I would go and talk to each doctor, buy the information from them, write my report, and hand it to him. If it's legal for a non-automated, all-human process to generate and publish this report, then it should be legal for a computer to do so. If it's not legal for people to do it - say, due to privacy laws - then having a computer do it shouldn't change the legality.

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