Apple-FBI Fight Asks: Is Code Protected as Free Speech?

Is software merely a set of instructions, telling a computer what to do? Or is it a unique, creative work that expresses a point of view and is protected under the First Amendment of the US Constitution?

The answers to these questions get to a key part of the legal fight between Apple and the US government. Apple is expected to argue in federal court that code should be protected as speech. The company is fighting a government order requiring it to write software to help the Federal Bureau of Investigation unlock an iPhone used by one of the San Bernardino shooters. Apple views that as a violation of its philosophy. Just as the government can’t make a journalist write a story on its behalf, according to this view, it can’t force Apple to write an operating system with weaker security. “That’s a fundamental First Amendment problem because it can’t compel speech,” said David Rivkin, a constitutional litigator at BakerHostetler.