Code as speech

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Code as speech is the idea that computer source code and similar digital expressions are forms of speech protected by the First Amendment in the United States. The idea became well known during the crypto wars of the 1990s, when courts debated whether encryption software should be treated as munitions. Courts ultimately recognized code’s expressive value, as in Bernstein v. United States, where the Ninth Circuit held that source code is speech protected by the First Amendment. The ruling supported the view that code communicates information just like language, music, or math.

Before that, the government had started restricting non-government use of cryptography. In the late 1970s, officials warned that sharing cryptographic material might violate weapons export laws. In the 1990s, export controls tightened, and strong encryption software was treated as something that could not be shared overseas without a license. Scientists, civil libertarians, privacy advocates, and cryptography activists pushed back, arguing that encryption is a mathematical idea and that publishing code should be protected as speech. Activists even wore T-shirts and posted symbols to protest censorship.

The Bernstein decision became an important legal precedent for later battles over code and free expression. The case was brought by mathematician Daniel Bernstein, who challenged export limits after being blocked from publishing his encryption algorithm. The Electronic Frontier Foundation helped him, and the ruling shaped how later cases treated code as protected speech.

Over time, other questions about encryption, privacy tools, cryptocurrency, and even 3D-printed gun files tested where law should draw the line. In 2015, the United Nations described access to encryption software as a human right. In 2016, the FBI tried to force Apple to unlock an iPhone in a terror investigation, arguing the government could compel software to bypass security. Apple resisted, saying forcing engineers to write such software would violate free speech. The case ended when the FBI found another way to access the data, but it remains a landmark example of the tension between security and free expression.

In the 2010s and 2020s, people debated whether Bitcoin and its code are protected as speech. Proponents say the code and the network express ideas about decentralization and distrust of centralized authority. Critics worry about regulation and misuse, and some scholars argue that publishing or running such software is protected speech because it conveys beliefs and information through code.

The government has also targeted open‑source privacy tools that work with blockchains. In 2022, the Treasury sanctioned Tornado Cash, an Ethereum privacy tool. Critics argued this punished the code itself rather than criminal users, and the Electronic Frontier Foundation defended the developers, saying open‑source tools should be protected as expression. The criminal case against Tornado Cash’s creator continued, and debates about how far code can be protected as speech persisted.

In 2024, developers of privacy tools for Bitcoin, including Samourai Wallet, were indicted. Critics said the government was using crime prevention as a pretext to go after code as speech.

The history also includes the 2013 defense of 3D‑printed gun files. Defense Distributed published CAD files for a gun that could be made with a 3D printer, triggering legal fights over whether sharing such code is protected speech. The group argued that restricting code or machine instructions is censorship, while supporters worry about public safety.

Another famous moment came in 2007 when the AACS encryption key for defeating DRM on HD DVDs leaked online and sparked a wave of protest. People posted the key on forums, and some created a “digital Boston Tea Party” by circulating the key widely. Activists even designed a Free Speech Flag whose colors encoded the banned key. The incident highlighted how a small piece of code or a single numeric key can carry strong political meaning. It also fed ongoing debates about piracy, intellectual property, and fair use, and it reinforced concerns that the DMCA’s anti‑circumvention rules can chill speech about encryption and other code.

Today, the question remains: when does code count as protected speech, and how should the law balance free expression with security, crime prevention, and safety?