Apple's First Amendment Argument

Feb 26, 2016
Originally published on February 28, 2016 1:37 pm
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We're going to take a closer look now at an argument that Apple is making in its battle with the Justice Department. The company says the government is trampling on its free-speech rights by asking it to write special software to get into an iPhone used by a terrorist. NPR's Laura Sydell explains how the First Amendment could apply to writing code.

LAURA SYDELL, BYLINE: The relevant part of the First Amendment here prohibits the making of any law, quote, "abridging the freedom of speech." And it's pretty well-established that speech comes in many forms.

ERIC GOLDMAN: We can talk, we can write words, we can draw paintings, we can take photographs.

SYDELL: Eric Goldman is a professor at Santa Clara University School of Law. Goldman says back in the 1990s, courts began to confront the question of whether software code is a form of speech. Goldman says the answer to that question came in a case called Bernstein v. U.S. Department of Justice. Daniel Bernstein was a student at the University of California at Berkeley who created an encryption software called Snuffle. He wanted to put it on the Internet. The government tried to prevent him, using a law meant to stop the export of firearms and munitions. Goldman says the student argued his code was a form of speech.

GOLDMAN: It clearly had expressive intent about what message the software author was trying to send to the world. It was trying to say I believe that privacy is important and I'm going to use this software in order to express that.

SYDELL: The Ninth Circuit Court of Appeals agreed, and software has been treated as a form of speech ever since. So if software code is speech, Apple says the First Amendment also means the government can't tell Apple what to say. The FBI wants Apple to write software code to help it break into the iPhone. Apple doesn't want to say this. Andrew Crocker, an attorney with the Electronic Frontier Foundation, or EFF, a digital civil rights group, says the government can't make you say what you don't believe. He looks to a Supreme Court case that began in New Hampshire.

ANDREW CROCKER: New Hampshire has a license plate that says, live free or die, and someone objected to that on religious grounds. And the court said no, in fact, you don't have to have that on your license plate.

SYDELL: And Apple doesn't have to write code, which equals speech, when it doesn't agree with what the government wants to do. And it's not that the government can't make you do anything you don't want to do. The government can't make you write a novel that's true. But Professor Goldman says...

GOLDMAN: There are plenty of circumstances where the government mandates people to speak. For example, you have to put the nutrition label on your can of food if you want to sell that food into the economy.

SYDELL: That's because there are safety issues involved in the sale of food, and certainly there are safety issues involved in this case. It's possible that there's something on the iPhone that tells of another pending plot against U.S. citizens. EFF attorney Andrew Crocker says Congress could make rules that force Apple to cooperate.

CROCKER: If you have a law that required them to do this in the first place, we might argue about whether that law is logical or a good idea or in fact is constitutional for other reasons, but it would at least establish a baseline that Apple had to comply with. And that's not the case here - they were totally free to design their software the way they did.

SYDELL: Though Congress could change that. Apple's top lawyer is scheduled to testify before a House committee next week. Laura Sydell, NPR News. Transcript provided by NPR, Copyright NPR.