Code as Speech: a discussion of Bernstein v. USDOJ, Karn v. USDOS, and Junger v Daley in light of the U.S. Supreme Court's shift to Federalism

Abstract

The purpose of this paper is to address the question of whether computer source code is speech protected by the First Amendment to the United States Constitution or whether it is merely functional, a "machine", designed to fulfill a set task and therefore bereft of protection. The answer to this question is a complex one. Unlike all other forms of "speech" computer source code holds a unique place in the law: it can be copyrighted, like a book and it can be patented like a machine or process [1]. Case law, intellectual property law and encryption export regulations all reflect this contradictory dichotomy. There are currently three cases before three separate federal courts that address as their core issue whether code is speech. The three cases are Bernstein v. US Dept. of Justice,[2] Junger v. Daley [3] and Karn v. US Dept. of State.[4] Both a Federal District court and a Federal Appeals court have heard each of the three cases. To date the courts have been split with Bernstein having initially won First Amendment protection for his code in the Ninth Circuit Court of Appeals before being remanded for an en banc rehearing; Junger having won First Amendment protection for his code and been granted a remand back to the lower court for rehearing after winning his appeal before the Sixth Circuit Court of Appeals; and Karn having been remanded back to the lower court for rehearing due to a change in the law.

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