[CrackMonkey] [wendy@seltzer.com: [dvd-discuss] Junger v. Daley: 6th Cir. says source code is speech]

[Seth David Schoen]

WooHOO!

----- Forwarded message from Wendy Seltzer <wendy at seltzer.com> -----

Date: Tue, 04 Apr 2000 14:24:18 -0400
To: dvd-discuss at eon.law.harvard.edu
From: Wendy Seltzer <wendy at seltzer.com>
Subject: [dvd-discuss] Junger v. Daley: 6th Cir. says source code is speech
Reply-To: dvd-discuss at eon.law.harvard.edu

Congratulations.  It looks like a good one.

<http://pacer.ca6.uscourts.gov/cgi-bin/getopn.pl?OPINION=00a0117p.06>
<http://pacer.ca6.uscourts.gov/opinions.pdf/00a0117p-06.pdf>

Having concluded that the First Amendment protects computer source code, we 
reverse the district court and remand this case for further consideration 
of Junger's constitutional claims in light of the amended regulations.

[...]

The Supreme Court has explained that "all ideas having even the slightest 
redeeming social importance," including those concerning "the advancement 
of truth, science, morality, and arts" have the full protection of the 
First Amendment. Roth v. United States, 354 U.S. 476, 484 (1957) (quoting 1 
Journals of the Continental Congress 108 (1774)). This protection is not 
reserved for purely expressive communication. The Supreme Court has 
recognized First Amendment protection for symbolic conduct, such as 
draft-card burning, that has both functional and expressive features. See 
United States v. O'Brien, 391 U.S. 367 (1968).

[...]

Because computer source code is an expressive means for the exchange of 
information and ideas about computer programming, we hold that it is 
protected by the First Amendment.

The functional capabilities of source code, and particularly those of 
encryption source code, should be considered when analyzing the 
governmental interest in regulating the exchange of this form of speech. 
Under intermediate scrutiny, the regulation of speech is valid, in part, if 
"it furthers an important or substantial governmental interest." O'Brien, 
391 U.S. at 377. In Turner Broadcasting System v. FCC, 512 U.S. 622, 664 
(1994), the Supreme Court noted that although an asserted governmental 
interest may be important, when the government defends restrictions on 
speech "it must do more than simply 'posit the existence of the disease 
sought to be cured.'" Id. (quoting Quincy Cable TV, Inc. v. FCC, 768 F.2d 
1434, 1455 (D.C. Cir. 1985)). The government "must demonstrate that the 
recited harms are real, not merely conjectural, and that the regulation 
will in fact alleviate these harms in a direct and material way." Id. We 
recognize that national security interests can outweigh the interests of 
protected speech and require the regulation of speech. In the present case, 
the record does not resolve whether the exercise of presidential power in 
furtherance of national security interests should overrule the interests in 
allowing the free exchange of encryption source code.



Wendy Seltzer
wendy at seltzer.com
Fellow, Berkman Center  for Internet & Society
Openlaw - DVD: http://eon.law.harvard.edu/openlaw/DVD

----- End forwarded message -----

-- 
Seth David Schoen <schoen at loyalty.org>  | And do not say, I will study when I
Temp.  http://www.loyalty.org/~schoen/  | have leisure; for perhaps you will
down:  http://www.loyalty.org/   (CAF)  | not have leisure.  -- Pirke Avot 2:5