Why the First Amendment means that the FBI can't force Apple to write and sign code


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“This is where the First Amendment comes in. The Constitution clearly prevents the government from forcing people to endorse positions they do not agree with.”

Citizens United FTW


Beat me by three minutes. Corporations are people, my friend.


Well, there are ultimately people working for that corporation who would be compelled to engage in expression they don’t agree with.


If Apple cannot be forced to “endorse positions they do not agree with,” why was Sweet Cakes by Melissa fined $135,000 for not endorsing a lesbian wedding by baking a cake?


There’s a difference b/t not accommodating the public, and not doing whatever the government wants.


baking a cake is not speech, but putting a message on top now…


What do you think the speaking fee would be to get Mitt Romney to tell James Comey “Corporations are people, my friend.” in his most superbly condescending tone?


As there are ultimately people in every corporation. Including unions and activist organizations, other assemblies, groups and structures of people. “Incorporating” being only one of many ways to organize group of as few as 1 or 2 individuals. Apple’s case is clear in that they would use the “rights” enumerated to them as “people” applied to them as an entity. If I understand it correctly I agree. I agree in corporate personhood and I agree in the outcome of Citizen’s United. Please note that that doesn’t mean I personally like the outcome of that case or that I agree with what they wanted to do; only that I will fight for them to have the right to do it. And for Apple to have the rights of free speech as well.




The government has forced people to remain silent about receiving national security letters requiring them to spy on people, and even deny that they have received them. Which is speech. So I’m not hopeful.


I enjoy this argument. I’m not sure it would carry the day, but it’s clever and satisfying, and it’s great fun to see the might of the surveillance state up against the well-funded legal team of one of the world’s biggest corporations. It’s godzilla vs mothra.

(IIRC there is also precedent elsewhere that code can be a “mechanism”; I’m not aware whether the precedent that code is speech necessarily means that all code must always be speech (machine-generated code too?) and that no code cannot be simply a mechanism. I’m guessing the FBI will argue that kind of angle.)


That’s the Because Terrorism clause of the Constitution, and it was expected to win this case for the FBI too


Bullshit. Money is not “free speech”. Commercial advertising and product claims are not “free speech”. And spitting out code sure as hell is not “free speech.” Software is patentable which means the right to exclude the use by all others, a total monopoly granted by the government. Some else owning your genetic code is not “free speech”. Genetic code is patentable in this upside down world, just not the one that make you up. Only the totally insane ever died for corporate “rights” which in American now trump all others as all of these claims of “free speech” ultimately serve trans-global power to stand above all laws and real human rights everywhere. Idiot Libertarians and Fascists are demeaning free speech to the point of vaporware. By this standard building a manual transmission is “free speech” or planting Frankenfood that happened literally to be life threatening. Unlike Libertarian-Fascist “free speech”, true free speech cannot be patented for which no “fair use provision” exists. That’s how authoritarianism wins. Way to go assholes, it’s on you.


Not even close. The assembled might of trans-global corporations can crush any opponent. You don’t think something that little people actually vote to chose can stand up to that?


Corporations are your nasty drunk neighbor with a rotting sofa in the front yard, rusting appliances on the porch, a non-running car on blocks in the driveway, and four or five teenage kids who randomly break malt liquor bottles on your front steps.


People don’t vote to choose the surveillance state. The black budget is a black budget, and there isn’t public oversight, accountability, or voting. It exceeds the GDP of many nations and is right up there with trans-global corporations.
(The FBI isn’t entirely funded from it, but it’s also acting as plaintiff for a wider group of interests.)


Code can very very clearly be free speech, because it indisputably can be used to communicate ideas and thoughts. Not only communication between coders, but to create games and art that convey stories, same as how a writer can use words to convey scenes and stories. Both words and code are code systems for conveying ideas, descriptions, etc.

That a piece of code could also legally be a “mechanism” (or instead be a mechanism) is an interesting aspect of code, but is not a refutation of whether code can be used communicatively. You could argue on those lines that some code is not speech, but you could not argue that code cannot be speech (and get taken seriously by many) because people literally speak to each other, using code as their speech.

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