Re: Software and the First Amendment

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From: Kragen Sitaker (
Date: Mon Jul 31 2000 - 14:07:58 PDT

Antoun Nabhan writes:
> 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,

I agree that this is the case in some cases, but I don't think it's
always true.

First, let me point out that the moral culpability of those to whom you
speak is not a defense for "speech as action". If you tell ten people
white people are devils that must die, they may go out and kill a bunch
of white people, although they should know better. If they do, you are
still culpable, even though they should have known better.

IMHO, a program to do X is morally equivalent to a set of written
English instructions for doing X. If someone wants to do X, they can
follow the written instructions; if following the written instructions
does X, the person guilty of doing X is the person who made the
decision to follow the instructions, not the person who wrote the
instructions. This is why, for example, bomb recipes are protected

Likewise, I think exploit scripts are and should be protected speech:
they explain how to do a particular thing which is usually a crime.

On the other hand, if you claim your instructions do X (say, "build a
bomb") and they actually do Y (say, "blow you up"), you are culpable
--- not the person who made the decision to follow the instructions. I
don't think that rests on the "speech as action" doctrine.

I don't think the act of instructing a computer to run a program is, in
itself, an act of speech. It's an act of thought. Publishing a
program for other people to read and possibly run is an act of speech.

<>       Kragen Sitaker     <>
Perilous to all of us are the devices of an art deeper than we ourselves        
                -- Gandalf the Grey [J.R.R. Tolkien, "Lord of the Rings"]       

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