The Digital Language of the Modern Era – Software Code and Freedom of Speech: Freedom of Expression Between Law, the Right to Knowledge and Technology
In the era of digital transformation and the ubiquity of technology, an interesting legal-philosophical question arises: Is writing a software program, i.e., coding, a distinct form of expression that enjoys constitutional protection through the right to freedom of speech?
This topic opens a window into the contemporary legal debate, the difference between the traditional understanding of “speech” and new forms of communication, and provides insight into how the law evolves in the modern technological context.
What Does American Law Say: “Is Software Code Speech”?
The real turning point occurred in American case law, which has a great influence on digital rights worldwide. Cases such as Bernstein v. United States Department of Justice and Junger v. Daley are historical examples in which American courts recognized that software code is not just a product, but is also a form of expressing personal ideas, knowledge, and creativity, and as such enjoys the protection of the First Amendment of the U.S. Constitution.
Bernstein, for example, was a doctoral student who wanted to publish his cryptographic software and encountered restrictions because the code was considered a military technique. The court concluded that source code has an expressive function – it can be understood, discussed, and analyzed among people, and as such is “speech.” Similarly, in the case of Junger v. Daley, it was ruled that computer code, regardless of its functionality, carries communicative and ideational value that cannot be reduced merely to a “machine action.”
This was further confirmed in the ruling Universal City Studios, Inc. v. Corley, where the American court stated that “communication in the language of programming code does not lose constitutional protection merely because of its format.”
It is important to emphasize that this legal protection in the U.S. is not absolute. There are justified legal limitations, especially when national security is at stake or when there are security risks associated with software tools. However, the practice clearly highlights: code is a valid form of expression, just like text, music, or a mathematical formula.
Precedents That Changed the Digital Era
Let us list the most important cases:
- Bernstein v. US Dept. of Justice – Court: Code is speech and enjoys First Amendment protection;
- Junger v. Daley – Court: Source code and cryptography are forms of expression (speech);
- Universal City Studios, Inc. v. Corley – Court: Even object code does not lose protection as “speech” because of its technical format;
- Reno v. American Civil Liberties Union – Internet communication, in any form, enjoys the highest level of constitutional protection in the U.S.
These cases paved the way so that technological creativity and the exchange of knowledge are not subject to censorship except in cases of clearly established public interests.
How Does the Constitution of Serbia Interpret the Issue of Code?
The Constitution of the Republic of Serbia in Article 46 stipulates:
“Freedom of thought and expression is guaranteed, as well as the freedom to seek, receive, and disseminate information and ideas through speech, writing, images, or by other means.”
The key words are “or by other means,” which allows for a broad interpretation and covers not only traditional means of communication but also contemporary forms such as software code. Domestic legal interpretations and scholarly literature confirm that every form of expressing information or ideas is protected by this article. Programming, as a form of expressing views, knowledge, and creativity, can therefore be considered constitutionally protected.
Of course, as in the American system, the protection is not unconditional. Freedom of expression, including software code, may be legally restricted for the protection of national security, the legal order, health, morals, or other legitimate public interests. Such restrictions, however, according to the letter of the Constitution, must be necessary and proportionate.
European Standards and Domestic Practice
The practice of the European Court of Human Rights – which is indirectly binding in Serbia as well – underscores that the right to expression includes not only the content of the message but also the form, as well as innovative means of communication. In this regard, programming code, as the digital “language” of the modern era, can fully fit within the constitutional framework of freedom of expression.
Conclusion: Code Is Speech – and the Law Is on Your Side
In the modern interpretation of law, the boundaries between traditional “speech” and digital forms of expression are becoming increasingly fluid. Courts and constitutional declarations around the world – especially the American and European legal systems – clearly recognize code as a specific means of communication, a creative expression of the individual, and a tool for the transmission of knowledge.
In Serbia, although there is no known judicial precedent as in the U.S., the Constitution provides a sufficiently broad framework for programming code to be considered a protected form of expression. This protection is not absolute and is subject to justified limitations in accordance with the criteria of necessity and proportionality.
To conclude, writing software code today is not just an engineering discipline – it is a modern form of art, science, and, from a legal perspective – the expression of free will and thought.
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