Re: Software and the First Amendment

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From: Dave Long (
Date: Tue Aug 01 2000 - 23:50:42 PDT

I'll have to dig up the dusty tomes again to come up with an
interpretation for software relating to speech as action, but
in the meantime, I remember a little while back we discussed
Bernstein v. USDOJ, <>.

Support for the notion that:

> ... the person guilty of doing X is the person who made the
> decision to follow the instructions, not the person who wrote the
> instructions ...

is lent by the decision in Whitney v. California:

> Thus, a state might, in the exercise of its police power,
> make any trespass upon the [274 U.S. 357, 378] land of
> another a crime, regardless of the results or of the intent
> or purpose of the trespasser. It might, also, punish an
> attempt, a conspiracy, or an incitement to commit the
> trespass. But it is hardly conceivable that this court
> would hold constitutional a statute which punished as a
> felony the mere voluntary assembly with a society formed
> to teach that pedestrians had the moral right to cross
> uninclosed, unposted, waste lands and to advocate their
> doing so, even if there was imminent danger that advocacy
> would lead to a trespass. The fact that speech is likely
> to result in some violence or in destruction of property
> is not enough to justify its suppression.

with the rather important caveat that the state takes a rather
dimmer view of danger to itself than to the persons or property
of its people.


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