Today in the United States, anyone equipped with the right string of 0s and 1s can 3D print an unregistered and untraceable assault rifle. That is thanks to Cody Wilson, a self-proclaimed anarchist who reached a settlement in 2018 with the US Department of State that allowed him to share downloadable, open-source code for 3D-printed guns. While this may seem like an archetypal Second Amendment issue, the printing of such weapons has instead been made possible by recent interpretations of the First Amendment. It’s clear that guns do not qualify as speech. Instead, the settlement was reached on the grounds that prohibiting the publication of this computer code infringed upon Wilson’s First Amendment rights.

US Court of Appeals in Bernstein v. US Department of Justice (1996). The case examined whether the government could prevent UC Berkeley graduate student Daniel Bernstein from exporting his code for “Snuffle,” an end-to-end encryption algorithm he created. In an unprecedented ruling, the Court decided that Bernstein’s code could be exported without regulation, as his code was protected speech under the First Amendment. The opinion stated: “This court can find no meaningful difference between computer language…and German or French…computer language is just that, language, and it communicates information either to a computer or to those who can read it.”

By the turn of the century, there was no longer any doubt: Computer code is speech, at least according to US courts. But what of the product of that code? Indeed, whether or not the outputs of code—websites, video games, algorithms, and so forth—are considered protected speech is far murkier.