[linux-elitists] Judge Kaplan on code as speech

Don Marti dmarti@zgp.org
Wed Jul 26 11:41:44 PDT 2000

   1            I think one thing probably has changed with respect
   2   to the constitutional analysis, and that is that subject to
   3   thinking about it some more, I really find what Professor
   4   Touretzky had to say today extremely persuasive and
   5   educational about computer code.
   6            Now, of course, which way that cuts is another
   7   matter, but I just don't think it's likely ultimately to prove
   8   tenable to say that computer code of any kind has no
   9   expressive content, source or object.  Which then gets you to
  10   the question of how then do you deal with it under the First
  11   Amendment.  I found myself wondering and I'm thinking out loud
  12   here, because I really want both sides to understand where my
  13   mind is going on this, because then they're going to focus
  14   more closely on what concerns me.
  15            I'm really in doubt as to whether saying that
  16   computer code is constitutionally protected speech goes very
  17   far toward answering the questions in this case.
  18            In the past, the Supreme Court has dealt with
  19   questions involving the regulation of expression essentially
  20   by fitting the particular kind of expression into various
  21   pigeon holes, fighting words, obscenity, conduct as contrasted
  22   with speech, commercial speech, and they've developed over the
  23   years various kinds of definitions that to one degree or
  24   another separate those different categories.
  25            I'm really not sure that paradigm fits this case.  Or
   1   if it does, where exactly -- which is the right pigeon hole
   2   for this case.  I reread the draft card burning case over the
   3   lunch hour, and the Supreme Court there said that although the
   4   burning of the draft card was obviously intended as
   5   expression, the government had the right to prohibit it, to
   6   criminalize it because of the governmental interest in running
   7   the draft.  I remember what I thought about that in 1968.  Not
   8   that I'm telling anybody.

Get the transcript and search on "Touretzky" for his testimony:

Prof. Touretzky's "Gallery of CSS Descramblers" includes the
winning entry from the Great International DVD Source Code
Distribution Contest: http://www.cs.cmu.edu/~dst/DeCSS/Gallery/

Don Marti                                No haiku patents
dmarti@zgp.org                           means I've no incentive to
whois DM683     Software patent reform now: http://burnallgifs.org/

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