Is code speech? Law and the expressivity of machine language

This article examines Universal City Studios v. Reimerdes and its appeal (Universal v. Corley), which tackle the question of whether code is speech, protected under First Amendment law. Computer code raises problems for free speech law, as code can be seen as both expression and conduct. The legal decisions in the case created an expression/function dichotomy that limited recognition of expressivity to communication among programmers through unexecuted code. This dichotomy creates a low bar for the regulation of code, including uses of code as political expression and dissent. Cultural definitions of computers and legal notions of authorship and agency rooted in old media kept the judges from considering the functional capacities of code as speech. However, legal consideration of this functional expressivity is necessary in order to recognize the actual political and cultural uses of digital media and to enable a more nuanced regulatory framework.