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The First Amendment and Software Speech
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."
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.
There is no difference between asking google to retrive information and provide a report than it is to request a secretary to find all references to a contract and provide a report.
The "report" in both cases should be considered free speech.
Why wouldn't the "speech" that is produced by the "automated" program, be speech from the author of the program?
I was really surprised there were almost no comments on this story...
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.
"First they came for the slanderers and i said nothing."
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.
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? 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!
My work here is dung.
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 all over our consumer rights.
The Netscape/Microsoft deal is a little more tricky, because unlike with Apple, Microsoft really did have a tremendous monoploy in the market at that time. In essence, Microsoft got to define the firmament, the earth, and everything inbetween. There wasn't any viable way to interact with computer-using consumers without building on top of Windows, and MS had/has complete control of that software. But even if the 1st ammendment does give MS more leeway on how it leverages its OS APIs to give preferential treatment to in-house applications, that wouldn't preclude the courts from recognizing the validity of other entities to reverse-engineer software and hardware for compatibility.
In short, greater freedoms for corporations under the 1st ammendment must be matched by greater freedoms for consumers and competitors under compatibility, reverse-engineering, and data freedom laws. More flexibility is great as long as the benefits are felt by all players in the game.
coding is life
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.
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.
Cthulhu for President! Why settle for the lesser evil?
The original purpose of the 4th amendment was that the government shouldn't spy on its own citizens and make their live difficult by the means of patriots act, NDAA and the like. The original purpose of the second amendment was that the people have the same weapons as the government so that there is no way that the government can enslave the citizens.
So why would anyone even bother arguing that the supreme court should look at the original purpose of the first amendment? They gave that idea up when they stood by when the second amendment was limited. When ignoring cases supporting gay marriage. When they validated the patriots act. When they okay'd Obama's forced reduction in the quality of health care policy.
You will never have freedom for yourself unless you support and fight for the freedoms of others.
Peter.
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 Google search results.
What Tuft seems to be trying to do with this is to hack the law. It is really beautiful. If the test which he proposes ("is it a culturally recognized medium of expression") is successfully folded into case law, especially at the SCOTUS level, some of the inane results of past free speech rulings in the U.S. may be easy to rectify.
Why wouldn't it be free speech? This means that if I use a calculator, "2+3=" is free speech, but "5" isn't.
What if I say the answer out loud, is it still not free speech because it's the calculator's answer? Even if I wrote the program?
Anything done on a computer is essentially an expansion of this, but really not any different.
When they said "speech", they very obviously meant *all* forms of communication. Of which data is just a digitized form. And software is data. End of story.
When you start a discussion about which parts of "ALL speech" are not part of "ALL speech", you already raped the first amendment, and you belong to jail. Also: End of story.
Leave it to legislatures to make a simple rule regarding freedom much more complicated than it really needs to be.
Python: 'And then suddenly you have a language which says "we're all stuck with whatever the whiniest coder wants".'
"abridging the freedom of speech, or of the press ... ."
What part of that do people not get? It makes no distinction between people, corporate entities, etc. "no law."
I think Google suppressing its competitor's results is not a first amendment issue. I think it's fraud. Even if it's not fraud, the court is tripping over its own stupidity with respect to "corporations are people". Google is not a person in the minds of anybody but precedent addled lawyers. Thus, Google has no rights. It's a corporation. Its very existence is a product of the state.
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!
sed -e 's/Chuck Norris/Rajnikant/g' joke > fact
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 publisher's insurance company decided to settle out of court. IMO, this would be the parallel to software.
http://en.wikipedia.org/wiki/Hit_Man:_A_Technical_Manual_for_Independent_Contractors
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.
"Instead, the courts should turn to the original purposes of the First Amendment"
Woah! Slow down there. That's original intent.
This seems rather obvious, whether you type it in or use some form of automation, ranging from spelling cleanup to complete restructuring/tweaking programs you are publishing and should fall under 1st amendment's speech protection.
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.
Knowledge is how to play a game, intelligence is how to win, wisdom is knowing what game to play.
Sex for money should be legal, and regulated.
The power to regulate is the power to de facto prohibit. I could "legalize" prostitution but make the regulations so burdensome that the only people who would become legal prostitutes or hire them would be doing so just to make a point, as opposed to the usual reasons people become prostitutes or hire them.
In my city, housing is regulated by building codes.
While it is not illegal for a home-builder looking to build low-income housing to build homes that have a fair market value of only $500 over the value of a vacant lot, local building codes mean that any building with that low of a market value would not be legal to live in. Or rather, if it met the building code as a home, it's market value would be very much over $500. Yes, I could build a home and sell it to someone for $500 over the cost of the lot, but he would have a much more valuable property and would be taxed accordingly.
Knowledge is how to play a game, intelligence is how to win, wisdom is knowing what game to play.
It's possible for a human being to read the binary code and receive information put in by both the original source-code author and the tools used to convert the source code to the binary.
Knowledge is how to play a game, intelligence is how to win, wisdom is knowing what game to play.
Whoosh.
"Software, in other words, should be considered not for what it is or even what it says but for what it means to society to treat it like speech. [...] Thus, videogames should be protected not because they convey information and not because they are like literature, but because they are a culturally recognized medium of expression."
This definition of when a given piece of software does or does not cross into 'speech' territory sounds awfully familiar. Rough translation: "We can't enumerate what exactly makes software speechware, but we'll know it when we see it." Where have I heard that before...?
Caveat Emptor is not a business model.
In the Von Neumann architecture, software consists of both "code" and "data". Suppose that only the "data" component of software was protected under the first amendment. This would mean that any laws passed would have to apply to only the "code" - a difficult task, but perhaps manageable. So the software:
printf("Candidate A sucks.");
would be immune from regulation unless congress passed a law prohibiting any software of the form:
printf(MemoryAddress);
Code is speech: Liberalism, legality and ethics of free software presents an anthropological view.
It's a thorny question, but I do know that when I wrote a program that solves sudoku puzzles, it was a much greater accomplishment than solving one particular sudoku puzzle.
Similarly, if/when somebody writes a program that, in turn, writes an essay that actually entertains or informs people, it will be a much greater accomplishment than writing a particular essay that entertains or informs people. As such, the software will deserve first-amendment protection.
That that is is that that that that is not is not.
One way I think helps to look at speech issues, is to imagine that topic of conversion were political (whether it really is, or not) and imagining it happening in the 1770s.
What if Tomas Paine or Samuel Adams were publishing computer programs, whose output were tables of imperial taxes divided by number of parliament seats? That's "just facts and information" but also 1) analytical, and the type of analysis chosen is derived from opinions 2) quite possible politically enlightening. Hell Yes the 1789 ratifiers thought they were outlawing government interference with that sort of thing.
As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
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