Requiring Creation of Computer Code Doesn’t Violate the First Amendment
reason.com
reason.com
Key Facts:
1. Plaintiff CDK sells a "Dealer Management System" which is some data portal for car dealers. Historically, CDK prohibited dealers from allowing third parties to access the portal.
2. Arizona legislature required CDK to develop an API for third parties to access the portal and banned the third party access restrictions.
CDK's Arguments:
1. Banning third party access restrictions is the same thing as compelling CDK to share information, which is compelled speech. The content of the speech is the format of the data on their portal. CDK cited a case [1] where SCOTUS said you can't compel a news organization to include a particular political candidate in a debate. Court did not buy this because the cited case was about "editorial discretion" and this does not smell like an editorial discretion case.
2. Code is speech, and forcing us to develop an API is compelled speech. CDK cites several cases to support that [2,3,4,5]. The court says two things. First, the API requirement does not actually require CDK to write code. Second, code is speech only when "a programmer might be said to communicate through the code," which "goes beyond code's capacity to instruct a computer." Again this is a smell test that basically asks "is the programmer expressing themself?"
[1] Arkansas Educational Television Commission v. Forbes, 523 U.S. 666 (1998)
[2] Universal City Studios, Inc. v. Corley, 273 F.3d 429, 449 (2d Cir. 2001)
[3] United States v. Elcom Ltd., 203 F. Supp. 2d 1111, 1127 (N.D. Cal. 2002)
[4] Junger v. Daley, 209 F.3d 481 (6th Cir. 2000)
[5] Bernstein v. U.S. Dep't of State, 922 F. Supp. 1426, 1429 (N.D. Cal. 1996)