The medium is the mistake: the law of software for the First Amendment.

• Author: Wagner, R. Polk

Is computer software--code written by humans that instructs a computer to perform certain tasks--protected by the First Amendment? The answer to this question will significantly impact the course of future technological regulation and will affect the scope of free expression rights in new media. In this note, R. Polk Wagner sets forth a framework for analysis of this issue, noting at the outset that the truly important question in this context is the threshold question: What is "speech or ... the press"? Wagner first describes two ways that the Supreme Court has addressed the threshold question. One is ontological--focusing on the expressive content of the speaker's conduct or the medium chosen. The second approach is teleological--determining whether the regulation at issue implicates free expression. Wagner argues that the teleological mode--especially as applied to computer software and other new media--is the more likely to be consistently speech-protective, and that the courts that have addressed computer software have mistakenly opted for the ontological, medium-focused analysis. Use of a teleological approach implies that there should be no "law of software," a conclusion that Wagner argues holds the most promise for extending robust First Amendment protections into new mediums of communication.

Each method of communicating ideas is "a law unto itself" and that law must reflect the "differing natures, values, abuses and dangers" of each method.

-- Metromedia, Inc. v. San Diego(1)

There's truth in the old saw that familiarity breeds contempt: nobody goes to Speakers Corner to listen.

-- John Hart Ely(2)

It is Saturday, somewhere in Silicon Valley. Debra, a young computer programmer, is putting the finishing touches on a revolutionary new software product, Lucifer.(3) Written in the programming language known as Java[TM], Debra intends to make Lucifer available to computer users on a variety of popular platforms. An experienced programmer, she understands that programming is a curious mixture of science and art, the pragmatic and the elegant. There is much original thought built into Debra's program, such as her ideas about proper logical organization, or the best language in which to program. But her creativity is highly constrained by the very fact that she is writing a set of instructions to drive a machine. In fact, in order to make the program useful, she must convert the Java code she understands into a language that the machine's processor understands--a process known as compilation. Once compilation is complete, the software can be used to operate a computer in the way in which she intended.

Debra's intent in writing Lucifer is complex. Lucifer is designed to break into--"hack"--corporate and government computer systems. Debra knows that hacking is against the law,(4) but she persists nonetheless for several reasons. First, she believes that the laws against hacking are misguided, serving only to lull corporations and governments into a false sense of security about the invulnerability of their networks. Additionally, she hopes to share her ideas about programming by letting other programmers see and use her work.(5) Finally, Debra hopes to make money by marketing Lucifer software to corporations and governments as a tool for analyzing the strength of their security systems.(6)

Can Debra be prosecuted under a law making it illegal to develop hacking software? Or does Lucifer raise First Amendment questions, limiting the power of government to stop Debra's programming and distribution activities? Hacking is conduct, but programming is at least partially expression. And Debra's creation of Lucifer clearly has expressive motivations, just as Gregory Lee Johnson made his point by burning a flag in Dallas.(7) But does the programming of Lucifer itself--writing the computer software or code--fall within "speech" or the "press" as did Johnson's activity?(8) First Amendment doctrine "has often faced the problem of applying the broad principles of the First Amendment to unique forums of expression."(9)

The First Amendment generally forbids laws "abridging the freedom of speech, or of the press."(10) While the courts and commentators have spared little ink in providing content to the limits of government activity with respect to speech and the press, they have paid considerably less attention to a logically anterior question: What is it, exactly, that "bring[s] the First Amendment into play?"(11)

When the forum of communication involved is the spoken or written word, courts and commentators do not linger long on this question.(12) Called "relatively minor First Amendment doctrine,"(13) the threshold question may seem but a smallish bump on the road to substantive First Amendment analysis--a procedural footnote to the grand tenets of "time, place, and manner" or "balancing tests."(14) Further, even when the threshold question is considered, it is often read as an epithet announcing a result rather than as the product of careful analysis.(15)

However, the threshold question--determining what is speech or the press--is critically important. A complete First Amendment analysis requires three generalized steps. First is the threshold question: Is freedom of speech and the press implicated? If so, the analysis moves to the second step: What is the level of scrutiny to be applied to the government action at issue? Once the court answers this question, the third step controls: Does the justification for the regulation meet the scrutiny imposed? In effect, any one of these steps may be dispositive. Laws that do not implicate the First Amendment do not receive First Amendment review.(16) A "strict scrutiny" standard, in most cases, will be the death knell for the regulation at issue.(17) And even if it does not fully resolve the issue, the threshold question affects governmental activities by determining whether content-neutral justifications must be made for the regulation.(18)

The threshold issue typically attracts attention when new modes of communication are used--and regulated. Union picketers are charged under a state antipicketing law.(19) A young man bums his draft card,(20) defaces the American flag,(21) or bums it.(22) The development and expansion of technology in particular raises the threshold question. Computer programmers attempt to export encryption software code;(23) our Debra and her Lucifer software raise similar questions about what qualifies as speech.

This note investigates the operation of the First Amendment threshold test in an effort to determine the "law of software." Part I identifies two separate methods of threshold analysis employed by the Supreme Court: ontological and teleological.(24) The ontological mode--also properly referred to as "mode-specific"--looks to the activities of the speaker as a guide to whether free expression is implicated. If the speaker is "speaking," then the First Amendment is triggered.(25) The ontological analysis encompasses more than the speech-conduct distinction, however. The Supreme Court also uses the medium of communication chosen by the speaker as the basis for the threshold determination.(26) The teleological mode, on the other hand, makes no reference to the speaker's activities or choice of medium. Instead, it focuses squarely on whether the governmental interests that support the regulation are related to the suppression of free expression.(27) If these interests are not related to free expression, then the analysis is complete; the First Amendment is not implicated.

Part II analyzes the law of software as applied to this threshold framework. The teleological mode, of course, rejects any categorization of mediums, and thus lends no guidance to (or support for) a law of software. However, application of the ontological approach to the particularities of computer software exposes fundamental weaknesses in the mode of analysis, leading to a questioning of this approach, at least as applied to new media. A threshold focus on the mode of communication--the expressive content of the speaker's activities or the medium in which they are conducted--is unlikely to provide strong protection for First Amendment values in the new media context. This note concludes that the teleological approach, though imperfect, may be better suited to the developing technology of new media communications. That is, for First Amendment threshold purposes, the "law of software" simply should not exist.

1. FROM ONTOLOGY TO TELEOLOGY: THE MODES OF THRESHOLD ANALYSIS

   Lest any readers have lingering suspicions about the existence of a First Amendment threshold question, this part will address that issue before moving further. The underlying logic of this point is that courts can uphold regulations alleged to be prohibited by the First Amendment "on the ground that they need not be evaluated according to First Amendment standards," and they can uphold the very same regulations because they "withstand constitutional scrutiny."(28) Therefore, some sort of boundary criteria must be established to determine whether First Amendment standards will be brought to bear. The Supreme Court has repeatedly recognized this threshold determination, both expressly and implicitly. In Spence v. Washington(29) the Court noted as an initial matter that "[i]t is therefore necessary to determine whether [Spence's] activity was sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments."(30) In Clark v. Community for Creative Non-Violence,(31) the Court noted that the determination (or assumption) of whether "expressive conduct" is present "begins the inquiry."(32) In Arcara v. Cloud Books,(33) the Court dismissed First Amendment concerns, concluding that "the First Amendment is not implicated by the enforcement of a public health regulation of general application."(34)

   That the threshold question is not always explicitly answered by...