One of the “givens” in Josh Blackman’s effort to prevent various federal judges from issuing a temporary restraining order against the publication of the CAD code for 3D guns is that code is speech. Georgetown lawprof Marty Lederman rejects the notion, calling it a “red herring.”
The “freedom of speech” red herring
Defense Distributed challenged the State Department’s Internet-posting ban as an alleged abridgment of its freedom of speech. Its theory is based on the idea (as it argues in a brief) that its computer code “is expressive in that it can be read and edited by humans, who can also understand and adjust its output.”
It may be right about that fact: Some small number of human beings can in some sense “read” and “edit” this code, just as there are some who can “read” most computer programs; the code might even have certain properties associated with a language.
By calling those capable of reading code “some small number of human beings,” Lederman not only trivializes their numbers, as there are a great many people who read, write and understand code, even if few of them end up teaching law school, but trivializes the point. Is it only “speech” if it’s spoken to a full auditorium? It makes no difference how many people receive the speech. It’s speech because it communicates, not because any particular number of people hear, read or understand it.
Yet, this isn’t remotely the point. Some code causes the Constitution to appear on our computer screen. Some code causes Lederman’s law review articles to appear at SSRN. Some code makes a cute kitteh pic show up. And some code provides the means to cause a 3D printer to create a gun. It’s neither more nor less expressive because of the outcome of the communication, any more than verbal instructions that serve one purpose are less speech than that which serves another.
But Lederman shifts to the “purpose” of the speech, apparently unaware of Wobbly songs.
That’s not the primary purpose of posting it to the Internet, however: Presumably Defense Distributed expects and intends that 99.99 percent of the people who download it will not “read” or “edit” its code but will instead simply do with it what we all do with computer files every day, namely, stick them or download them into a computer so that they can perform the technological functions for which they were designed—in this case, to create operational weapons at the click of a mouse, without conveying any information to anyone.
The shift here seeks to narrow the read/write continuum by using intent to disclaim the nature of speech. For anyone who has ever watched a Youtube video on how to fix one’s car, the fallacy should be clear. Most people who “stick” this code into their computers won’t be making guns. They can’t. They don’t have the capacity to do so, and don’t actually want a crappy plastic gun.
But the communication is that they can say, “we have the technology.” Then there’s the communication upon which others will change, improve, the message. Maybe someone will use this CAD code to write code that will provide the means to save a life that Lederman values? But that doesn’t occur to him yet, as he’s stuck on the nefarious use of the code.
More importantly for constitutional purposes, the government’s reason for regulating the distribution of the code is not to suppress any potential “informational” value in rare cases where a recipient might “read” it. It is, instead, to prevent persons overseas from obtaining a tool of production the physical properties of which cause the easy creation of non-exportable weapons. (This is not, in other words, a restriction on speech because it (as Noah Feldman put it) “instructs the public how to commit a crime.”
The flat world of the internet allows things that the government would otherwise wish to prevent. Who knew? We say it here, and somebody in a far off land gets to see it because they have google and wifi too. Then again, it’s not as if people in other countries, say Russia, possess the mad coding skillz that would allow them to kick our butts in, say, hacking. Or creating a CAD of 3D guns. And if it’s expressed here, and read there, how then can the government execute its duty to restrict the information so it doesn’t fall into the hands of people who intend to do us harm?
This is a far better argument than trying to spin code as not being speech. Nobody wants terrorists bringing undetectable guns onto planes to do harm. Sure, there are other communications out there, the bomb-making instructions in the “Anarchist’s Cookbook,” for example, because as much as there is a potential for its use against us, it remains speech. And as such, it is protected by the First Amendment unless it falls within a prohibited class of speech.
The concerns raised by Lederman, as well as a great many others, about the potential spread of 3D guns may be grossly overstated, but they are still concerns. The argument that a gun whose primary feature (and many far more substantial deficits) is the ability to pass undetected through a magnetometer seems to serve only purposes that can do harm. And to ignore this concern is to be in denial, even if some will inevitably argue that this feature could also serve those who believe that guns in the hands of Americans serve as a check on governmental abuse.
But to deny that code is speech isn’t the way to deal with the potential harm 3d guns could cause. If anything, it exposes code to all manner of mischief, censorship and abuse that will almost assuredly be regretted as the government seized upon the idea as a way to prevent the spread of disfavored ideas and communications.
Does this present a quandary, given that it protects speech that could, a couple steps down the line, cause harm? Sure, bearing in mind that it’s not the speech that does harm, but the downstream creation of a plastic gun (without a piece of metal as the law requires) that ends up in the hands of evil doers and is used to harm others.
Unfortunately, there is quite a bit of information available that serves similar purposes, as well as benign if not beneficial purposes. Dealing with it is hard, but denying that code is speech is not just ridiculous, but counterproductive and likely dangerous.
Update: In an update, Marty has generously sought to re-explain, maybe for my benefit (?), why he’s not saying code isn’t speech, but that this code isn’t speech. To make his point, he offers this explanation.
This part of Greenfield’s post demonstrates the point nicely:
Some code causes the Constitution to appear on our computer screen. Some code causes Lederman’s law review articles to appear at SSRN. Some code makes a cute kitten pic show up. And some code provides the means to cause a 3D printer to create a gun.
Yes, of course code not only can itself be expressive, but can also facilitate other speech (just as ink and paper can do).
Now I appreciate videos as much as the next guy, but my sincere efforts to see a cognizable point here have been without avail. If code is speech, and this is code, then this is speech. It doesn’t become nonspeech because it can be used (or not) for nefarious purposes (or not).