Should code be protected speech, in the same category as books, art, or journalism?

The easy answer is yes—all human creativity can and should be considered free speech.

But what happens when the code in question malicious?

If all code is speech, does that include malware, viruses, and software meant to steal or destroy? Should the creators of these digital weapons have the same constitutional protections?

The code that runs our cars, powers our grids, and processes our votes is the language of modern life. As algorithms increasingly influence anything and everything, from what we buy to how we vote, the way we classify this language—speech or something else—will define our digital rights for generations.

So when does software become a human right?

And where the fuck do we draw the line?

The Genesis of Code as Speech

The idea of code as speech has been percolating through the legal system for decades, gaining momentum as our reliance on software has grown. The landmark case that first brought this issue to the forefront occurred in the 1990s when the Electronic Frontier Foundation (EFF) championed the cause of cryptographer Daniel Bernstein. Bernstein wanted to publish the source code for an encryption algorithm he had developed, but he found himself at odds with government regulations that treated such code as a munition, subject to export controls.

In a groundbreaking decision, the court ruled in Bernstein's favor, stating that software source code was indeed speech protected by the First Amendment. The court's reasoning was pivotal:

"The distinguishing feature of source code is that it is meant to be read and understood by humans, and that it can be used to express an idea or a method."

The Expressive Power of Code

That idea of expression is critical.

Just as two authors might describe the same scene using different words and styles, two programmers can solve the same problem with distinct approaches, each reflecting their unique thought processes and expertise.

Laura Norén, a postdoctoral associate at NYU's Center for Data Science, eloquently captures this:

"It is certainly a form of expression used to communicate ideas. Additionally, it can be full of distinguishing characteristics. The code I write may obtain the same objectives as the code my colleague Chris writes, but that doesn't mean we have produced exactly the same series of letters and symbols."

Seen in this light, code isn’t just a set of instructions for a machine; it’s a medium for human ideas and creativity.

The Benefits and Risks

Protecting Innovation and Dissent

With software underpinning critical infrastructure and daily interactions, the freedom to code - and to share that code - isn’t just a technical right. It’s a cornerstone of meaningful societal participation, whether it’s exercised or not.

Programmers have created software that illuminates issues ranging from privacy concerns to electoral integrity. Safeguarding this code under free speech ensures that digital forms of protest and awareness-raising remain viable.

Without free speech protections for code, governments and powerful corporate or private entities can stifle innovation by restricting the development and distribution of certain software types, impeding technological advancement and scientific discovery and cracking down on research, knowledge and the dissemination of ideas.

The Specter of Malicious Code

But unlike traditional forms of expression, code has the unique ability to directly execute actions in the real world. This functional aspect of code challenges any blanket classification as protected speech.

Treating all code as free speech will - unavoidably - provide shelter to truly malicious software - viruses, ransomware, tools designed explicitly for criminal activities.

As Ran Levi, host of the Malicious Life podcast puts it,

"If computer code is protected by the First Amendment, then we can do nothing about someone who uses code to write malware. If software development is protected by the first amendment, then selling ransomware is absolutely legitimate."

It’s not an unreasonable concern. The potential for code to cause direct harm sets it apart from other forms of expression. Sure, inflammatory speech can indirectly lead to harmful actions. But malicious code can directly compromise systems, steal data, or disrupt critical services with the click of a button. It’s a different fucking ballgame.

Real-World Implications: The 3D-Printed Gun Controversy

The debate over code as speech came to a head in 2018 with a legal settlement between the U.S. Department of Justice and Cody Wilson. Wilson had sought to publish code for 3D-printed guns, arguing that the First Amendment protected his right to share this information. The settlement, which allowed Wilson to proceed with publication, ignited a firestorm of controversy and highlighted the real-world consequences of treating code as protected speech.

This case exemplifies the tension between free expression and public safety. On one hand, the code represents knowledge and information that, proponents argue, should be freely shareable under First Amendment protections.

On the other hand, this code, when executed, results in the production of physical weapons, voiding gun control laws and putting the public at risk.

So who wins?

That’s the darker side.

But a world where freedom is in flux needs protection for speech more than ever.

Freedom of expression, both online and offline, diverges dramatically worldwide - as highlighted by the 2023 World Press Freedom Index from Reporters Without Borders. Today, over 80% of the global population lives in countries where freedom of speech is more restricted than it was in 2000. Autocratic regimes in Russia, Iran, and China, among others, have tightened their grip, increasingly suppressing dissent and protests to maintain control.

In the struggle for freedom, code is a powerful tool. As a universal language that transcends national borders and traditional linguistic barriers, it plays a vital role in the fight for digital rights and freedoms. From open-source projects fostering global collaboration to encryption tools protecting privacy, code has become instrumental in safeguarding various forms of expression.

We are fucking with the boundaries of free expression in a global, digital context; and the question of whether code should be considered free speech defies simple answers.

Governments have long grappled with the problem of preserving liberty while maintaining order. The tension between these ideals is not new. Even if the medium is changing by the day.

We need a framework - philosophical, as much as technical, as much as legal - that protects the expressive and progressive potential of code while balancing its capacity for harm.

The words of Harry Truman resonate powerfully:

"Once a government is committed to the principle of silencing the voice of opposition, it has only one way to go, and that is down the path of increasingly repressive measures, until it becomes a source of terror to all its citizens and creates a country where everyone lives in fear."