I have submitted an essay to the Stanford Law Review for publication. I didn’t tick the box for “exclusive”, so I think I can blog it as well. It’s a reply to Andrew Tutt’s essay on Software Speech.
Andrew Tutt’s essay “Software Speech” rightly points out that the Sorrell and Brown cases set up inconsistent standards for whether software is to be considered “speech” and entitled to First Amendment protection. The logic of his essay goes astray, however, when he projects the consequences of Sorrell; they need not be so sweeping as he might suppose, and in fact a software engineer (someone working in the field) would not expect them to be.
I am a software engineer, not a constitutional attorney. But, as the founding president of the Open Source Initiative (the generally recognized certification authority on what licensing terms can be considered “open source”) I have been frequently required to grapple with questions about law, policy, feedom of speech, and intellectual property. I was also an individual amicus in Reno v. American Civil Liberties Union, the successful 1996 case against the Communications Decency Act. The territory of Mr. Tutt’s essay is not strange to me.
There is a colorable distinction, one obvious to any software engineer, between software considered as an act of speech versus software considered as an instrument of speech. Those of us (including myself) who hold that “software is speech” are insisting that the creation of software is a form of creative and expressive speech act with a result entitled to all the protection against coercive interference that we would extend, say, to a copy of Lady Chatterley’s Lover or Mein Kampf.
The consequences we would draw from that claim are significant. At present it is technically illegal to publish or convey software that constitutes a “circumvention device” under the Digital Millennium Copyright Act of 1997. As a matter of principled civil disobedience in support of First Amendment liberty, I carry a link to such software on the front page of my website even though I have never used it. If Sorrell were applied consistently, that provision of the DMCA would be annulled.
But Mr. Tutt is wildly off the mark in supposing that Sorrell would preclude any regulation of speech in which software functions as instrument rather than itself being the speech act. He worries that “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.” There is a case for that position, but it has nothing to do with Sorrell; Sorrell would only protect Apple’s right to publish the eBook and browser software.
I can perhaps make this distinction clearer with a roughly parallel case. The right to publish instructions for building a pipe bomb is constitutionally protected as an expressive act; this does not mean we relinquish any regulation of actually detonating such devices!
Declaring my interest, I’m concerned to rebut Mr. Tutt’s overinterpretation of Sorrell not merely because I think it is fallacious but because such overinterpretation might cause a damaging reaction against it. All expressive speech, in whatever medium, deserves Constitutional protection; Sorrell merely affirms that software is not an exception.
Mr. Tutt’s confusion is understandable, and that the Supreme Court shares this confusion is suggested by the implicit conflict he points out between the Sorrell and Brown decisions. It can be difficult to reason crisply when act and instrument are both intangible and are closely entangled. But software engineers have to do this all the time. The legal academy might benefit, on this and related issues, if it listened a bit more to the engineers and a bit less exclusively to itself.
UPDATE: Don Marti points at an excellent analysis along similar lines, Publishing Software as a Speech Act.