Code Is Speech

Is code speech? That is one of the timeless questions that comes up again and again in the field of Internet law and policy. Many books and countless papers and essays have touched on this topic. Personally, I’ve always thought it was a bit silly that this is even a serious question. After all, if code isn’t speech, what the heck is it?

We humans express ourselves in many creative ways. We speak and write. We sing and dance. We paint and sculpt. And now we code. All these things are forms of human expression. Under American First Amendment jurisprudence, expression is basically synonymous with speech. We very tightly limit restrictions on speech and expression because it is a matter of personal autonomy and also because we believe that there is a profound danger of the proverbial slippery slope kicking in once we allow government officials to start censoring what they regard as offensive speech or dangerous expression.

Thus, we when creative people come up with creative thoughts and use computers and software to express them in code, that is speech. It is fundamentally no different than using a pencil and pad of paper to write a manifesto, or using a guitar and microphone to sing a protest song. The authorities might not like the resulting manifesto or protest song–in fact, they might feel quite threatened by it–but that fact also makes it clear why, in both cases, that expression is speech and that speech is worth defending. Moreover, the methods or mediums of speech production and dissemination–pencils, paper, guitars, microphones, etc.–are what Ithiel de Sola Pool referred to as “Technologies of Freedom.” They help people extend their voices and to communicate with the world, while also learning more about it.

Which brings us to the 3D printers and the code behind the open source blueprints that many people share to fabricate things with 3D printers. Washington Post reporter Meagan Flynn was kind enough to call me last week and ask me to comment for a story she was putting together about the ongoing legal fights over 3D-printed firearms in generally and the efforts of Cody Wilson and Defense Distributed in particular. Wilson is a self-described crypto-anarchist who has landed in hot water with federal and state officials for making available open source blueprints for the 3D-printed firearms freely available to the public. Federal efforts aimed at stopping Wilson and Defense Distributed haven’t worked and now state attorneys general are seeking to impose legal restrictions on him.

Flynn’s WashPo article offered an outstanding overview of everything that is happening on this front, so I won’t rehash it all here. But I wanted to reproduce my portions of her story here and just add a few more thoughts. Here’s the block of the story that mentioned my thoughts:

"Adam Thierer, who specializes in the intersection of free speech and technology at George Mason University’s Mercatus Center, said the debate over the computer code for the 3-D-printable guns is the same song he heard during the Crypto Wars — but more like a remix. Guns, of course, pose different risks than encryption technology. Thierer said he thinks the Defense Distributed code is almost certainly speech, but the question is whether the government can demonstrate a compelling interest to regulate it.

"The problem with the states’ argument, he contended, is that it would be a “stretch” for the judge to decide that the computer code itself skirts the states’ gun laws, as those laws generally center on possession of actual guns. It would be easier for the states to regulate 3-D-printed guns themselves through new laws, he said, rather than seeking to regulate the code that creates them. “They would have to make the argument that the speech itself is essentially the device,” he said. “Nothing is stopping them from regulating firearms. But the underlying speech is not in their purview. There has to be a distinction made between the speech and the byproduct of speech.”

In our recent essay, “3D Printers, Evasive Entrepreneurs and the Future of Tech Regulation,” Andrea O’Sullivan and I offered more extensive discussion of the legal issues at play here. And in a 2016 law review article entitled, “Guns, Limbs, and Toys: What Future for 3D Printing?” my co-author Adam Marcus and I discussed several examples of how additive manufacturing and the “maker” revolution are making the governance of various emerging technologies quite challenging.

The key points my co-authors and I try to make in these articles is that:

1. These controversies aren’t going away; they are only going to expand as “evasive entrepreneurs” find new interesting ways to use 3D printers to express themselves.
2. Regardless of what is being produced with 3D printers, the code and blueprints behind them are speech and deserve protection. And under American free speech jurisprudence, such code will almost certainly win such protections from courts when legislators or regulators seek to censor or regulate them.
3. The better way to regulate 3D printing is to focus on the physical manifestations of speech/expression. That is, focus on the user and the use, not the speech behind it. As Marcus and I put it in our law review article, “the proper focus of regulation should remain on the user and uses of firearms, regardless of how they are manufactured.” The U.S. has an extensive array of federal and state firearm regulations, and they can and should continue to apply to 3D-printed weapons. Likewise, a 3D-printed prosthetic limb is still a medical device, and the Food and Drug Administration can regulate it according if it sees fit. But in neither case should the underlying speech (i.e., the code) behind such inventions be censored.