Re: Software and the First Amendment

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From: Wendy Seltzer (
Date: Mon Jul 31 2000 - 08:18:21 PDT

At 11:00 AM 7/31/00 -0400, Antoun Nabhan wrote:
>Be careful, you may get what you wish for. The law actually has a concept
>which can accomodate, called "speech as action." It's what prevents you
>from threatening people and calling it protected speech ("fighting words")
>or yelling fire in a crowded theatre. Beware, though: it's also the germ
>of legalisms like "hate speech" that begin to seriously encroach on what a
>freedom-lover would think of as "free speech." And I suspect it's the
>handiest tool with which the lawyers and judges and other suits of the
>world would begin to address the nuanced difference between "code" and
>"traditional speech."

Sure, but it depends whom you're speaking to. What might be "incitement to
imminent lawless action" if you were "speaking" directly to the computer
should be protected speech or advocacy when spoken to another computer
user. Even if the advocacy is "break the law -- download this and run it
on your computer," there's still room for mediation between the speech and
the action. The viewer of the program must decide whether to run it.

I might be willing to distinguish between running the program and
publishing it, but I'd say the publishing (excepting the automatic
run-on-receipt macro viruses and worms) is not imminent incitement.


>Sure seems to me like code is speech, but there's a key difference: code
>is *action*, or more precisely, code creates action in machine-agents
>which we do not hold morally culpable. So, it's okay if I tell someone on
>my staff, "you know, we should just have that vendor taken out back and
>shot." I say it frequently, in fact. But no harm is done, because 1)
>whoever I'm talking to is always savvy enough to understand that I'm
>KIDDING, and 2) even if I were serious, nobody would actually get shot
>because nobody I'm talking to is willing to take my instruction in the
>face of the various social constraints against vendor-icide. (In fact, I
>usually get ignored no matter how mild the suggestion. :-) )
>But computers generally aren't savvy enough enough to know when the
>software engineer is kidding ("You can't *seriously* mean wipe out this
>whole hard drive without notifying the user, right?") and computers aren't
>culpable for their action; I can't put in jail for
>sending me the ILoveYou virus. Wouldn't mean anything to me or to the
>agglomeration of HW and SW known as So when you
>write code, you're not really describing action to other, morally culpable
>agents, you're actually acting. The computer is just a long, strong arm.
>IANAL, but I play one on the Net,

Wendy Seltzer --
Fellow, Berkman Center for Internet & Society at Harvard Law School

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