Stanford Law Review Online: Software Speech

Stanford Law Review

The Stanford Law Review Online has just published a Note by Andrew Tutt entitled Software Speech. Tutt argues that current approaches to determining when software or speech generated by software can be protected by the First Amendment are incorrect:

When is software speech for purposes of the First Amendment? This issue has taken on new life amid recent accusations that Google used its search rankings to harm its competitors. This spring, Eugene Volokh coauthored a white paper explaining why Google’s search results are fully protected speech that lies beyond the reach of the antitrust laws. The paper sparked a firestorm of controversy, and in a matter of weeks, dozens of scholars, lawyers, and technologists had joined the debate. The most interesting aspect of the positions on both sides—whether contending that Google search results are or are not speech—is how both get First Amendment doctrine only half right.

He concludes:

By stopping short of calling software “speech,” entirely and unequivocally, the Court would acknowledge the many ways in which software is still an evolving cultural phenomenon unlike others that have come before it. In discarding tests for whether software is speech on the basis of its literal resemblance either to storytelling (Brown) or information dissemination (Sorrell), the Court would strike a careful balance between the legitimate need to regulate software, on the one hand, and the need to protect ideas and viewpoints from manipulation and suppression, on the other.

Read the full article, Software Speech at the Stanford Law Review Online.

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3 Responses

  1. Mike B says:

    Why not treat computers and software, unless clearly active content (like video games), as the medium rather than the message? The telephone isn’t speech; what it carries is. Ditto TV and many other media. Yes, I know McCluhan: the medium is the message. But that’s not really true from a technical standpoint. The word processor example: the document is the message; the program used to create it is the medium. The web page (which these days almost certainly includes active content) is the message; the browser is the medium. The search engine is the medium; the RESULTS of the search are the message. Etc. The message is the “speech” you’re trying to protect. Then … isn’t there a difference in protection between commercial and other speech (next round I’m sure).

  2. It would have been interesting if Andrew had commented on the impact of calling software (pure,quasi,so-so) speech, and patent law. If software is speech, and I have patented that software, I can deny you the ability to use that software. Does that mean I have denied your freedom of speech for that software?

  3. Alpheus says:

    A couple of thoughts that ought to be considered, when trying to decide whether or not software is speech:

    First, as someone who has been involved in the Linux community for years, I can attest that people *do* choose to use operating systems, word processors, and even search engines, as political statements, usually as a statement that proprietary software is harmful. Thus, these things are more than just a medium, but are a means for pursuing political pursuits.

    Second, the code itself is potentially free speech. A quote from “Structure and Interpretation of Computer Programs” illustrates this: “Programs must be written for people to read, and only incidentally for machines to execute.” Thus, computer programs are literally documents for humans to read–to explain how to calculate things. If this shouldn’t qualify for free speech, then what should?