Via CoCo – Fighting Keywords: Translating the First Amendment to Protect Software Speech by Robert Plotkin at SSRN
In the following sections I propose an alternative analytical approach in which the kind and degree of First Amendment protection afforded to source code in particular cases depends upon the intent of the speaker-programmer and the strength of the causal connection between the speaker-programmerâ€™s speech and the alleged harm. This approach incorporates conventional principles of tort law, criminal law, and First Amendment jurisprudence, thereby preserving as much freedom of expression as possible while promoting the legitimate public interest in regulating harm, in addition to avoiding the need to answer the question of whether source code is speech or a device.
I focus on the issues of intent and proximate cause because both would be critical elements in any civil or criminal claim brought against a programmer for harm allegedly caused by the distribution of his or her source code, and because First Amendment jurisprudence takes intent and proximate cause into account when determining whether and to what extent the First Amendment shields a particular defendant-speaker from liability. […]
The hypotheticals are very instructive, but I need to think a bit more on the notion of software as “powerful” speech meriting distinguishing treatments. Since the “power” of software arises from the degree to which actions are delegated to (and thus alientated through) technological instruments, there’s a question of responsibility and intent to resolve, I would say.