The medium is the mistake: The law of software for the first amendment

Is computer software-code written by humans that instructs a computer to pe rform certain tasks-protected by the First Amendment? The answer to this qu estion will significantly impact the course of future technological regulat ion and will affect the scope of free expression rights in new media. In th is note, R. Polk Wagner sets forth a framework for analysis of this issue, noting at the outset that the truly important question in this context is t he threshold question: What is "speech or... the press"? Wagner first descr ibes two ways that the Supreme Court has addressed the threshold question. One is ontological-focusing on the expressive content of the speaker Ss con duct or the medium chosen. The second approach is teleological-determining whether the regulation at issue implicates free expression. Wagner argues t hat the teleological mode-especially as applied to computer software and ot her new media-is the more likely to be consistently speech-protective, and that the courts that have addressed computer software have mistakenly opted for the ontological, medium-focused analysis. Use of a teleological approa ch implies that there should be no "law of software," a conclusion that Wag ner argues holds the most promise for extending robust First Amendment prot ections into new mediums of communication.