
Requiring Creation of Computer Code Doesn’t Violate the First Amendment - protomyth
https://reason.com/2020/05/22/requiring-creation-of-computer-code-doesnt-violate-the-first-amendment/
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rmrfstar
Article just quotes 9 paragraphs from an Arizona opinion.

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)

