[jofo25]

If code is speech, does this mean anyone can write code to perform any kind of task (nefarious or otherwise) and be protected by the First Amendment? It seems difficult to parse that someone could write some code that for example, to break someone's pacemaker or life support machine and that person would be protected by free speech.

Maybe in that scenario, it would be the author who writes that code who would be protected but the person who executes the deadly code who is breaking the law?

[IceyEC]

Not all speech is protected:

Holmes's famous phrase means that not all forms of speech are protected. For example, the First Amendment does not protect obscenity, child pornography, true threats, fighting words, incitement to imminent lawless action, criminal solicitation or defamation.[1]

[1]: http://1forall.us/teach-the-first-amendment/the-first-amendm...

[dragonwriter]

"Holmes famous phrase" was an emotional argument irrelevant to the facts of the case it was offered in, unsupported by the case law then or now, in one of the most repugnant, anti-free-speech decisions in history, which allowed criminal punishment for pure political speech (and which has since been overturned.)

[pdabbadabba]

I agree with you about Schenck, but I'm not sure what this has to do with the broader point at hand. Whatever you might think about Schenck, it is indisputably correct under American law that there are significant categories of speech that can be either proscribed or compelled. Schenck is just one of very many cases that demonstrate this.

[bitwize]

Holmes uttered his famous phrase in a Supreme Court opinion upholding the criminalization of criticizing the draft -- which is in more recent times thought to be overstepping the bounds of the 1A.

So while not all speech is protected, the notion of what is protected can change over time -- hopefully in a pro-liberty direction.

[zamalek]

Indeed.

The ELI5 of free speech is: you can say whatever you want so long as it doesn't come at a cost to another legal entity (normally people, but not always).

One example that I found very demonstrative while trying to intuitively understand FOS was a very extreme one[1]. It's a difficult but worthwhile read. The best way to understand FOS is to read up[2] on how it has been applied.

[1]: https://en.wikipedia.org/wiki/National_Socialist_Party_of_Am... [2]: https://en.wikipedia.org/wiki/Category:United_States_Free_Sp...

[Zigurd]

> does this mean anyone can write code to perform any kind of task (nefarious or otherwise) and be protected by the First Amendment?

It should. Code is speech, so banning private speech is to create a thought-crime. Unless the author of that code intends it to be used as a weapon and facilitates that use, yes, they ought to be protected. Your hypothetical also probably isn't all that hypothetical. Pacemakers have vulns, and it isn't illegal to create a PoC proving the vuln is real. There are probably real world examples.

[fennecfoxen]

> does this mean anyone can write code to perform any kind of task (nefarious or otherwise) and be protected by the First Amendment?

Yes, that's pretty much true, though actually executing that code to perform a nefarious task (or otherwise conspiring to execute the task or encouraging people to that end) may still be illegal.

[facetube]

I would certainly hope so: exploit proof-of-concepts that ultimately help to improve computer security are, in fact, tools that perform nefarious things.

[AnthonyMouse]

> Maybe in that scenario, it would be the author who writes that code who would be protected but the person who executes the deadly code who is breaking the law?

How is that not the only sensible outcome?

Telling people about vulnerabilities is the only way they can defend against them. Defenders need actual exploit code to test their countermeasures against.

The person who uses the exploit to kill someone is the person who uses the exploit to kill someone.

[nikdaheratik]

Not all speech is protected, but yes writing code is protected, it is executing that code for nefarious purposes that is not. Just like writing down invention designs for a killer robot is protected, but building that robot and using it on people is not.

[jonlucc]

> If code is speech, does this mean anyone can write code to perform any kind of task (nefarious or otherwise) and be protected by the First Amendment?

Not a lawyer, but I don't think so. You can't just say anything you want, either (yelling "fire!" in a crowded room, slander, inciting violence, etc).

[simoncion]

> You can't just say anything you want, either (yelling "fire!" in a crowded room ...

This is simply not true. Read Trope Two here [0] for a brief overview (although the entire essay is well worth reading), and [1] for a in-depth analysis of the trope.

[0] https://popehat.com/2015/05/19/how-to-spot-and-critique-cens...

[1] https://popehat.com/2012/09/19/three-generations-of-a-hackne...

[jonlucc]

If I understand correctly, it's not that the force of what I said is incorrect, but just that the specific phrase doesn't mean what I intended? The point is still that not all speech is legal, therefore not all code would be legal, even if code is speech.

[simoncion]

> ...just that the specific phrase doesn't mean what I intended?

The point is that the boundaries of where speech loses its First Amendment protections are very clearly defined. Now that you are aware that the "Fire!" example is not an example of unprotected speech, you would do a grave disservice to discourse if you continue to use it as an example of unprotected speech.

[gnoway]

I'm not sure that's what is being argued here. I think it's more like if the govt compelled someone to write software to break someone's pacemaker or life support machine, then certify under their name that the software was safe to use.

Of course in this case the person is a corporation; if this defense works I wonder if there will be calls for renewed scrutiny of corporate personhood. This may have been discussed in the article, but I was unable to read very far because I have an ad blocker turned on.