[linux-elitists] Judge Kaplan on code as speech

Heather star@betelgeuse.starshine.org
Wed Jul 26 11:18:11 PDT 2000

>   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

Okay. let's see how many of these the kernel can hit :)

* pigeon holes
	yep, we've got those modules everywhere...

* fighting words
	shared memory anyone?  how about whether or not pcmcia should
	go in the main tree?

* obscenity
	oh yeah.  # this device is fucked by design, so...

* conduct as contrasted with speech
	er, you mean if I'm speaking a password at my voiceprint biometric
	thingy it's not speech?  hmm.  

	Is this the same basis under which it's okay to publish a Very 
	Detailed book -about- crypto, but not ship the sample code that's
	pubbed inside it on a companion disc?  Lame.

	Since this one confuses me I can't tell if v4l code goes anywhere
	near it.

* commercial speech
	well, yeah, some code is commercial.  And a bunch of that won't have
	fighting words and obscenity.

. expression as art (which has not been mentioned)
	Can we really say that some of these people have not done a bunch
	of this for the elegance, or the challenge?  Nope.  The challenge
	-includes- the results being usable.  Certain kinds of elegance
	demand reusability far beyond the scope of the obvious use, if there
	even was one.

	Obfuscated perl contest results, anyone?

>   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
>                                                                 1155
>    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.


He could leave things confusing enough by simply declaring computer code
as speech.  Most speech is protected, some is slander or provocation-to-riot
or a number of other bugs.   Or as press.  Hmm.  Open Source code having 
freedom of the press.  Mailing lists as freedom of the press too.  There's a 
thought !

* Heather * Might as well be frank, monsieur.  It would take a miracle to get
            you out of Casablanca and the Germans have outlawed miracles.
		-- Casablanca

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