they object, it is not because the code
itself would be a misstatement of their
beliefs. What they would be objecting
to is being forced to do something that
they don’t believe in. But the government forces people to do things they do
not believe in all the time: to pay taxes,
to serve on a jury, even to stop at a stop
sign. None of those things even come
close to raising a First Amendment issue. Neither should forcing Apple to
The government’s access to information is also limited by the Fourth
Amendment, which prohibits “
unreasonable searches and seizures,” but
one way to make a search or seizure
reasonable is to obtain a valid warrant,
which the government had in these circumstances. Thus, there was no viable
Fourth Amendment argument in the
case, and Apple did not make one.
Apple’s other arguments were statutory. In particular, Apple argued that
the law the FBI and the court had invoked, the All Writs Act (AWA), did not
in fact authorize the order at issue.
ment right to freedom of expression.
The argument is seductively simple,
almost syllogistic. Step one: courts
have previously recognized computer
code as a form of speech protected by
the First Amendment. Step two: the Supreme Court has long held that the government can violate the First Amendment not only by restricting someone’s
speech, but also by compelling someone to speak. Ergo, forcing Apple to
write code that it did not want to write
would be compelling it to speak, in violation of the First Amendment. QED.
The trouble with the argument is
that the syllogism breaks down because the reasons for protecting computer code have nothing to do with
the reasons for forbidding compelled
speech. Computer code merits at least
some First Amendment protection because it can be used to communicate.
If I want to describe how an encryption
algorithm works, for example, I might
do so using code or pseudo-code. The
code conveys ideas, and the govern-
ment should not be able to stop me
from explaining how an encryption
algorithm works, at least not without a
very good reason.
Compelling speech is problematic
for an entirely different reason. Compelled speech does not stop anyone
from saying or explaining anything.
Nothing prevents a person from denying in the next breath what they were
forced to say in the first one. The problem is that the very act of being forced
to affirm a belief you do not hold can
be a way to manipulate those beliefs
and runs counter to the freedom to
choose one’s own beliefs. The classic
Supreme Court case striking down a
speech compulsion was one involving
schoolchildren compelled to say the
Pledge of Allegiance.
The code that the government
would force Apple to produce is not a
set of beliefs, and producing code is
not like affirming beliefs. For starters,
it is not meaningful to talk about the
beliefs of Apple, the company. Even if
we look at actual Apple employees who
would be directing or writing code, if P H
Empty chairs reserved for Apple and the FBI in preparation for the U.S. House Committee on the Judiciary hearing in Washington, D.C.,
on Tuesday, March 1, 2016.