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Comment by swehner | Hacker News Reader

I submit this is cynical. To call this speech is just misleading.

Laws will always be around to make people do things they don't want to do. To twist this into some kind of speech issue is silly.

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An analogy is the government forcing you to draw something objectionable, and then sign your name to it. That's clearly unconstitutional compelled speech, plus the mere existence of an obscene work signed by you could seriously harm your reputation as an artist.

Here the creative work is software, and the signature is digital, but the principle is the same.

Exactly, that's not a free speech issue, and talking like that is cynical.

What are you talking about? Compelling an artist to create and sign a work is absolutely a free speech issue.

Here is how one commonly goes about defining free speech, "Freedom of speech is the right to communicate one's opinions and ideas without fear of government retaliation or censorship."

So that's a great freedom.

What you're saying is the other way around.

FWIU, _compelled speech_ is unconstitutional too.

How do you distinguish this case from the obligation to sign tax returns? (I think that is 26 U.S. Code § 6061, https://www.law.cornell.edu/uscode/text/26/6061)

The talk a bit about it here, https://www.irs.gov/Tax-Professionals/The-Truth-About-Frivol...

And this is kind of similar but about the 5th Amendment. http://openjurist.org/775/f2d/1292/eh-mosher-v-internal-reve...

Could Apple then invalidate what it was previously coerced to say AND not expect government retaliation or censorship?

I'm not sure if you are trolling or not, but that is very obviously a free speech issue.

Disagreeing. Nothing "very obvious" about it.

If you can compel speech, then you can effectively censor people by forcing them to disavow their messages, and then burying their signal in compelled noise.

Or to put it another way, compelling speech is denying the right to send the null message.

Yes, that is not a useful way of looking at the issue.

Noone cares about the "null message".

I disagree. The case they're making here is really interesting: a software signature is a statement in support of the software object, and compelling the signature is essentially compelling Apple to vouch for something they don't believe in.

If writing code isn't speech, what is it?

Speaking!

Is it only speech/writing because high level languages are like English? Are low level languages, down to the point of setting individual bits, also speech/writing? Is flipping a bank of 8 single pole single throw switches speech/writing?

If your reason for flipping those switches is to express an idea, then yes. If for some reason the number 7 was outlawed and you decided to flip those switches to 00000111, you'd be protected by the First Amendment.

Before someone says outlawing a number won't ever happen, look up what a Free Speech Flag[1] is.

[1]: https://en.wikipedia.org/wiki/Free_Speech_Flag

> your reason

Does it come down to exclusively my reason? My reason might go uncommunicated, and if so, does someone else get to infer my reason?

Setting the state of physical switches being considered an expression of an opinion/idea (speech) also seems like a slippery slope toward all other physical actions being speech if "my reason" agrees.

That's why we have the courts to rule exactly what is and isn't protected (versus having a big long list needing constant revision [like the DMCA exception list]). Granted, flipping switches isn't the best example, but if Free Speech Flags are protected, I can't see why flipping a set of switches is any different.

Now, IANAL, but the act of writing the AACS encryption key to your RAM (I would assume) is protected (websites listing it place it in your RAM). But if you were to actually use that key in ways not allowed by the DMCA, then you're not protected.

> Setting the state of physical switches being considered an expression of an opinion/idea (speech) also seems like a slippery slope toward all other physical actions being speech if "my reason" agrees.

I can't imagine why setting those switches as an act of defiance would be illegal, but if the number "7" was the encryption key for a DVD, actually using those switches as the encryption key would be illegal.

Again, IANAL, and this is just speculation based on my understanding of the law

When we refer to 1st amendment free "speech," we are not referring to the physical act of speaking words, but to the general act of expression

And why wouldn't it? Morse code and braille don't look like English either.

The courts have ruled consistently that software code is speech

I agree with this. The company has many other ways of expressing their beliefs, but calling the code specifically a form of speech feels like a stretch. Overall I am on Apple's side of this. But while this article makes an interesting argument, I just don't think I buy it.

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