Beta

×

Welcome to the Slashdot Beta site -- learn more here. Use the link in the footer or click here to return to the Classic version of Slashdot.

Thank you!

Before you choose to head back to the Classic look of the site, we'd appreciate it if you share your thoughts on the Beta; your feedback is what drives our ongoing development.

Beta is different and we value you taking the time to try it out. Please take a look at the changes we've made in Beta and  learn more about it. Thanks for reading, and for making the site better!

The First Amendment and Software Speech

timothy posted about a year and a half ago | from the hello-world-vs-the-state dept.

Software 194

First time accepted submitter stanlrev writes "When is software, or content generated by software, 'speech' for First Amendment purposes? That is the question that Andrew Tutt seeks to answer in an article published today in the Stanford Law Review Online. He argues that the two approaches commentators and the Supreme Court have proposed are both incorrect. Software or software-generated content is not always speech simply because it conveys information. Nor is software only speech when it resembles traditional art forms. Instead, the courts should turn to the original purposes of the First Amendment to develop a new approach that answers this question more effectively."

cancel ×

194 comments

Sorry! There are no comments related to the filter you selected.

It is about not lettting ideas be silenced (5, Insightful)

cjonslashdot (904508) | about a year and a half ago | (#41993375)

I am not a Constitutional scholar (although I have read the Constitution and refer to it frequently), but I would presume that "freedom of expression" and "freedom of speech" are intended to ensure that ideas cannot be censored. And since the Constitution is about the rights of people and government, I also presume that the right pertains to people - not organizations. Organizations are not people, just as a pack of dogs is not a dog and a mob of people is not a person. And not machine generated content: such content is not necessarily the output of people, unless a person arranges for a _specific_ machine output in order to express an idea. If the 1st Amendment is truly about ensuring that ideas cannot be censored, then free speech is not about permitting anyone to say purposely offensive things (i.e., the form of their speech), but about their right to express (perhaps politely) the _ideas_ contained in their speech.

Re:It is about not lettting ideas be silenced (5, Insightful)

Quila (201335) | about a year and a half ago | (#41993471)

Organizations are not people, just as a pack of dogs is not a dog and a mob of people is not a person.

However, an organization is made of people, and do they lose all of their rights as part of the organization? You and a bunch of friends don't like people killing kittens, and you use your full constitutional ights to fight the killing of kittens. To be more efficient, you decide to form an official organization to promote your cause and fight under its mantle. Now, because you did that, you lose your rights, making your efforts less effective?

For machine generated content, I'll accept that when machines start having original ideas.

Re:It is about not lettting ideas be silenced (1)

YodasEvilTwin (2014446) | about a year and a half ago | (#41993507)

No having rights granted to a collective doesn't imply that the individuals lose their rights. The individuals are still individuals regardless of what they come together and do.

Re:It is about not lettting ideas be silenced (2)

Quila (201335) | about a year and a half ago | (#41994377)

Under the "organizaitons have no rights" idea, I and my friends can individually spend our money to buy ad time to promote the cause, and we would have the right to do it as individuals. But if we pool our money to buy an ad, we would lose all rights to air it.

Re:It is about not lettting ideas be silenced (2)

JackieBrown (987087) | about a year and a half ago | (#41994775)

No having rights granted to a collective doesn't imply that the individuals lose their rights. The individuals are still individuals regardless of what they come together and do.

So unions should not have rights?

Re:It is about not lettting ideas be silenced (4, Insightful)

DarkOx (621550) | about a year and a half ago | (#41993607)

I agree with your argument but I would also add that because the Constitution also secures a right to assemble, its clear to me at least that an Organization is a first class entity just like an individual. The right of individuals to express themselves by forming an organization and acting as unit should be protected.

Re:It is about not lettting ideas be silenced (2)

dgatwood (11270) | about a year and a half ago | (#41993831)

To a point. Beyond a certain point, however, an organization of people can amass the ability to speak at sufficient volume (both in loudness and in quantity) to effectively drown out dissenting voices. Thus, in order to guarantee free speech for the individual, to some degree, the speech of large groups must be kept in check.

This applies whether the large group is the government, a PAC, a corporation, a union, or pretty much any other group of people who have united for a single purpose. For example, the U.S. government is structured very deliberately to minimize tyranny of the majority.

Similarly, commercial speech (e.g. advertising) has limits that require a degree of truthfulness. Commercial speech is not really different from any other speech, apart from the fact that the people doing the speaking have the presumption of authority and the volume to back up that presumption. We just have more laws to cover that corner case because it is fairly common and is often egregious. :-)

Re:It is about not lettting ideas be silenced (4, Insightful)

Obfuscant (592200) | about a year and a half ago | (#41994013)

Thus, in order to guarantee free speech for the individual, to some degree, the speech of large groups must be kept in check.

You're confusing the right of free speech with the right to be heard. The former is protected, the latter is not. E.g., you have the right to say something. You don't have the right to force me to hear you.

In any case, this is a very dangerous road to start travelling on. Who decides when "a group" is "too large" to have First Amendment rights anymore? Is George Soros, with billions of dollars, "too large" and likely to have too loud a voice to have the right to use that voice? Citizen's United was apparently "too large" to have the right to free speech, even though they were a corporation formed explicitely for the purpose of making political speech and were trying to buy airtime in the face of a much larger organized political party.

Commercial speech is not really different from any other speech,

Yes, it is. Speech trying to sell you something (a product with a price) is much different than someone trying to convince you of an opinion. There is existing case law differentiating the two.

Re:It is about not lettting ideas be silenced (1)

Archangel Michael (180766) | about a year and a half ago | (#41994459)

"What good is a phone call, if you are unable to speak?"

Re:It is about not lettting ideas be silenced (2)

Obfuscant (592200) | about a year and a half ago | (#41994991)

"What good is a phone call, if you are unable to speak?"

http://en.wikipedia.org/wiki/Telecommunications_device_for_the_deaf [wikipedia.org]

http://www.access-board.gov/telecomm/rule.htm [access-board.gov]

While the common use of TDD is for deaf, they usually have a speechless mode of data entry that a mute person could use.

Since we're talking about removing rights of free speech from people who have joined a corporation, you're question is actually relevant, but I suspect you were trying to claim that the "right to be heard" is somehow involved in not being able to speak at all. You're right, silencing people is bad, but forcing others to listen to everything someone has a right to say is, if not worse, as bad.

Imagine the laws: "you will watch TV tonight at 7PM so you can hear the free speech from the following individuals. Your viewing will be monitored and you will have to answer a quiz to test your comprehension." The "right to be heard" is not implied in the right to free speech, as much as some people would like it to be.

Re:It is about not lettting ideas be silenced (1)

ireallyhateslashdot (2297290) | about a year and a half ago | (#41994975)

You're confusing the right of free speech with the right to be heard. The former is protected, the latter is not. E.g., you have the right to say something. You don't have the right to force me to hear you.

But someone a large enough organization (or someone with enough money; remember, the Supreme Court says that money is speech) can force you to listen to them, by drowning out all the other voices. Thus, under your interpretation, organizations (and the rich) have the right to have their voices heard, to the exclusion of others.

Re:It is about not lettting ideas be silenced (1)

Em Adespoton (792954) | about a year and a half ago | (#41994501)

I agree with your argument but I would also add that because the Constitution also secures a right to assemble, its clear to me at least that an Organization is a first class entity just like an individual. The right of individuals to express themselves by forming an organization and acting as unit should be protected.

Does this mean that I have the right to assemble any source code I come across? Would that be free speech? :)

Re:It is about not lettting ideas be silenced (2)

sjames (1099) | about a year and a half ago | (#41995111)

There is no need for the organization to become it's own legal entity. The individuals assemble as is their right. They arrive at a consensus and then an individual uses his/her own free speech rights to make a statement on the group's behalf.

Re:It is about not lettting ideas be silenced (1)

geekoid (135745) | about a year and a half ago | (#41993645)

" I'll accept that when machines start having original ideas."
already happening. Emergent behavior, software that rights books and poems.

If that isn't generating ideas, then you need to define 'idea' a lot better.

Re:It is about not lettting ideas be silenced (1)

Bob the Super Hamste (1152367) | about a year and a half ago | (#41994253)

software that rights books and poems

Apparently it should have been used to write that comment.

Re:It is about not lettting ideas be silenced (1)

Quila (201335) | about a year and a half ago | (#41994295)

I'm thinking genuine original creative ideas vs. an algorithm that just combines words according to preset rules. I don't think we're quite there yet.

Re:It is about not lettting ideas be silenced (1)

Anonymous Coward | about a year and a half ago | (#41994635)

already happening. Emergent behavior, software that rights books and poems.

Looks like that software still needs some work in the homonym module.

Re:It is about not lettting ideas be silenced (0)

Anonymous Coward | about a year and a half ago | (#41994665)

...and, of course, the homophone module as well.

Re:It is about not lettting ideas be silenced (1)

cjonslashdot (904508) | about a year and a half ago | (#41993673)

Yes, is a dilemma. On the one hand, groups of people can do wonderful things. But they can also do awful things. Today the greatest threat to democracy is the power of special interest groups. These groups have agendas of their own, and they act in ways that their individual members might not. It is a real dilemma, and perhaps something that was not anticipated by the Constitution.

Re:It is about not lettting ideas be silenced (2)

Obfuscant (592200) | about a year and a half ago | (#41994123)

It is a real dilemma, and perhaps something that was not anticipated by the Constitution.

Obviously, prior to the Constitution, there never were such things as unions (guilds) made up of people with common ideas (trades) who might try to influence governments to do things that support them. There were no groups that any of the founders of the US were familiar of, despite the following from here [msana.com] :

During the late 1700s it was one of the organizations most responsible for spreading the ideals of the Enlightenment: the dignity of man and the liberty of the individual, the right of all persons to worship as they choose, the formation of democratic governments, and the importance of public education. Masons supported the first public schools in both Europe and America.

I think any argument that tries to claim that "special interest groups" weren't forseen by the founders who wrote the constitution is epic fail.

Re:It is about not lettting ideas be silenced (1)

cjonslashdot (904508) | about a year and a half ago | (#41994283)

You are right, there were groups. But today those groups have become extremely powerful. Communication is much more effective today and large groups use it much more effectively than ever before. Manipulation of people has become a science.

Re:It is about not lettting ideas be silenced (1)

Obfuscant (592200) | about a year and a half ago | (#41994895)

You are right, there were groups. But today those groups have become extremely powerful.

You don't think that Masonry, which claimed Geo. Washington, Ben Franklin, and many other founders, as members, much less as targets to be influenced, wasn't extremely powerful? Or any of the trades or social "guilds" of the time? You're talking about a time when, if you pissed of a trade guild in the city where you lived, you couldn't just get on the web and order what they were't going to provide for you from the next state or country over.

You don't know about them like you know about the unions today, but don't be fooled into thinking that their invisibility to you today made them meaningless yesterday.

Communication is much more effective today

Special interest group power comes not from being able to broadcast their message, but from being able to monocast it to the ones who have the real power. This has not changed.

Manipulation of people has become a science.

Now say something that argues for the repeal of basic constitutional rights for people.

Re:It is about not lettting ideas be silenced (3, Interesting)

Quila (201335) | about a year and a half ago | (#41994251)

Today the greatest threat to democracy is the power of special interest groups. These groups have agendas of their own, and they act in ways that their individual members might not

Like unions! They oppose laws that restrict their ability to use their members' money to influence elections even when the beliefs of the union are opposite the beliefs of the member. Unfortunately, for many people quitting the union is not a realistic option due to various laws (no right to work) and circumstances. Members of the NRA or Greenpeace can just opt to not renew. Shareholders in corporations can sell their shares. But union members are mostly screwed.

Re:It is about not lettting ideas be silenced (0)

Anonymous Coward | about a year and a half ago | (#41993695)

However, an organization is made of people...

So is Soylent Green. Your point?

Re:It is about not lettting ideas be silenced (1)

sjames (1099) | about a year and a half ago | (#41995077)

Of course not. Any individual within the organization can use their own free speech rights to say whatever needs saying.

Re:It is about not lettting ideas be silenced (0)

Anonymous Coward | about a year and a half ago | (#41993475)

Understand GP's post and you may have a greater understanding of the differences between US and EU positions on free speach as commonly understood.

Re:It is about not lettting ideas be silenced (1)

YodasEvilTwin (2014446) | about a year and a half ago | (#41993481)

So you're saying that no algorithm should be censored, only offensive implementations of such algorithms? Perhaps ones that are buggy? That sounds wonderful :D

Re:It is about not lettting ideas be silenced (1)

cjonslashdot (904508) | about a year and a half ago | (#41993697)

No I am not saying that. I am merely musing about the intent of the 1st Amendment. I think it was about preventing censorship of people by government. If a machine generates something, that is not generated by a person, so it was not anticipated by the Constitution. But there might be a gray area: perhaps a person arranged for the machine to express the person's opinion. E.g., suppose it is a drone vehicle that flies around painting a political message in the sky. The drone is a machine, but the message was arranged by a person. Wouldn't this be "speech"? But if an AI algorithm generates speech, is that protected? I would think not, since today's AI machines are not people, and the Constitution is about people.

Re:It is about not lettting ideas be silenced (1)

nschubach (922175) | about a year and a half ago | (#41993849)

But compiled code is machine generated. Minified code is machine generated as well. So the only code that could be protected free speech in your case would be source code and/or raw/interpreted code.

Re:It is about not lettting ideas be silenced (1)

YodasEvilTwin (2014446) | about a year and a half ago | (#41993851)

I was joking. I do appreciate the nuance here.

Re:It is about not lettting ideas be silenced (0)

Anonymous Coward | about a year and a half ago | (#41993541)

Was this post generated by a machine? Where it's not self-contradicting, it's incoherent.

Re:It is about not lettting ideas be silenced (-1)

Anonymous Coward | about a year and a half ago | (#41993649)

It's garbage. This is Slashdot after all. Just write something along the lines of "Code.. freedom of speech.. liberty.. hurr.. durr.. " and watch the comment skyrocket to +5 insightful.

Re:It is about not lettting ideas be silenced (1)

Anonymous Coward | about a year and a half ago | (#41993603)

You should read the Constituion some more. Congress can't legislate speech, not because of the first amendment but because that's not one of their enumerated powers. Whether software-generated speech is speech or not is irrelevant -- Congress doesn't have the authority to legislate it.

Re:It is about not lettting ideas be silenced (1)

Hatta (162192) | about a year and a half ago | (#41993611)

then free speech is not about permitting anyone to say purposely offensive things

"If you can't say Fuck you can't say, Fuck the government."
Lenny Bruce

Re:It is about not lettting ideas be silenced (1)

cjonslashdot (904508) | about a year and a half ago | (#41993727)

Yes, our culture equate free speech with art and any form of expression. I am not sure that was the intent. But I don't know. To me, I would value the expression of an idea, such as "the government is corrupt" as much more important than the ability to express it in a rude way such as "fuck the government". But that is my personal value.

Re:It is about not lettting ideas be silenced (2)

Hatta (162192) | about a year and a half ago | (#41993967)

The problem is, the offensive part of most speech is the content, not the form. Is the statement that "non-violent marijuana users deserve to be sent to prison" really any less offensive than "fuck Obama"? I would argue that the former is absolutely more offensive by any rational criterion. In fact, there is nothing that could be censored that would offend me more than the act of censoring it.

Censorship itself is offensive, and if you use offense to justify censorship you have to take that into account and prohibit censorship on the grounds that it is offensive.

Re:It is about not lettting ideas be silenced (1)

cjonslashdot (904508) | about a year and a half ago | (#41994061)

Yes, you are right in a sense, in that the former violates a sense of fairness and rationality. It is offensive for that reason - the idea is offensive as you say - whereas the second is offensive because it is a pejorative. There is a difference. But then again, censorship of pejoratives would silence a great amount of valuable literature and art.

Re:It is about not lettting ideas be silenced (1)

Hatta (162192) | about a year and a half ago | (#41994509)

the second is offensive because it is a pejorative

Which is only offensive if you choose to view it as such. What's the difference between "Fuck Obama" and "Obama is a bad, evil man"? The sentiment is the same, just the word choice is different. So why is the first word unacceptable? Because your mommy told you it was bad? Is that all?

"bad words" aren't bad. It's the people who believe that "bad words" exist who are bad people. We have much more important things to deal with than word choice. Quit being a distraction.

Re:It is about not lettting ideas be silenced (1)

readin (838620) | about a year and a half ago | (#41994091)

Regardless of whether you use foul language when expressing your idea, so long as you use words it should be ok. If you want to use the words "F--- the government" instead of "the government is corrupt" that's fine. However if you want to use a knife on a politician instead of saying "the government is corrupt" then we have a problem. If you want to stage a play where you have someone pretend to slash a throat then you're probably ok but when you start defending "art" you have trouble drawing the line. Is slashing a throat for real just a form of "performance art"? Why is f***ing for money illegal in most places in America unless you do it in front of a camera?

It's must simpler just to protect the words.

Re:It is about not lettting ideas be silenced (1)

cjonslashdot (904508) | about a year and a half ago | (#41994219)

Sex for money should not be illegal. It is an overreach of local government in my opinion. It is between two consenting adults. The government has no legitimate business in it, just as the government has no legitimate business telling someone they cannot use drugs. Should Keith Richards have been prevented from using drugs? Perhaps then he would not have written such great music. It is his choice. I don't choose it myself, but who am I to say that someone else should not choose it? As long as they don't hurt anyone or drive while under the influence.

Re:It is about not lettting ideas be silenced (1)

readin (838620) | about a year and a half ago | (#41994455)

Sex for money should not be illegal. It is an overreach of local government in my opinion. It is between two consenting adults.

That's a reasonable position to take, but should it be constitutionally protected? Is it in the same class of rights as the right to free speech, a fair trial, freedom of religion and the right to vote? Is the viability of a constitutional republic in danger if it is outlawed?

The libertarian philosophy is wonderful and I generally agree with it (though for practical reasons I don't always agree with it). However I think the libertarianism needs to be a cultural value that is then reflected in the laws made by the legislature. So if you want libertarian laws, you first need to persuade the voters (and we've been doing a pretty crappy job of that for many years). The constitutional protections should mostly be limited to those necessary for making sure we have the freedom to make the arguments that change the culture, and the freedom to then change the government to reflect the culture.

Re:It is about not lettting ideas be silenced (2)

Archangel Michael (180766) | about a year and a half ago | (#41994619)

Sex for money should be legal, and regulated. Making it illegal doesn't do anyone any good, because it still happens in sufficient amounts of places that the law itself is non-effect. If prostitution were legal, then we would be able to license workers, require them to carry sufficient health and liability insurance, keep proper records of clients that the negative effects (if any) are mitigated significantly. At this point, government cannot mitigate anything, except by "crackdown".

Re:It is about not lettting ideas be silenced (2)

blahplusplus (757119) | about a year and a half ago | (#41993617)

"tended to ensure that ideas cannot be censored."

We already have that with copyright law and intellectual property, the corporations have essentially defeated certain forms of culture from ever appearing (i.e. no public domain anymore). For instance one might ask why one cannot repair old software or why customers can't own games and get source-code for old (no longer sold) games for instance so fans/customers can fix up and pass them no to future generations. These things should be in a library after x many years. Things like the following:

http://www.youtube.com/watch?v=xhAR8rWPluQ [youtube.com]

Are increasingly impossible with "property" laws expanding into every domain it doesn't belong in all to protect someones profits.

Re:It is about not lettting ideas be silenced (1)

cjonslashdot (904508) | about a year and a half ago | (#41993783)

Indeed. The 1st Amendment protects us from government, but who protects us from powerful groups, such as companies, unions, etc.? We really need a supplemental "Bill Of Rights" to address organizations of people and how individuals are protected from those organizations. You are perceptive, that so-called intellectual property is the currency of power of the 21st century, and will be the primary instrument of oppression. We are seeing it take shape now. Small startups are hard pressed to create _any_ product that does not infringe on _some_ patent held by some large company with a patent portfolio.

Subjectivity Is Very Dangerous! (4, Insightful)

eldavojohn (898314) | about a year and a half ago | (#41993661)

And not machine generated content: such content is not necessarily the output of people, unless a person arranges for a _specific_ machine output in order to express an idea. If the 1st Amendment is truly about ensuring that ideas cannot be censored, then free speech is not about permitting anyone to say purposely offensive things (i.e., the form of their speech), but about their right to express (perhaps politely) the _ideas_ contained in their speech.

I'm no constitutional scholar either but I feel you are proposing very subjective measurements. Once it gets to the point of you deciding what is and isn't protected free speech by way of how nice, specific or worthwhile you are pretty much censoring based on what you personally feel is or isn't acceptable!

Right now, we don't actively censor people who wish to yell "FIRE!" in a crowded theater. For what if there was a fire in said theater? Instead, we let everything be said and then if it is felt that libel, slander, criminal intent, death threats, etc were said, you may bring it to the attention of a court of law. Even those make free speech an uneasy topic but they have tried to codify those conditions as best as possible.

Imagine a judge determining what is "nice" enough to leave up and what is "purposely offensive" enough to take down. If some heavy metal band wants to write a song that consists entirely of cursing and intercourse references and other people enjoy said music, who am I to demand that be taken down by how offensive it is?

Free speech is about free speech. Not ideas, not being nice, not worrying about offending some prude. There are laws that are applied after the fact but you should be able to say whatever you want! Did we not just cover this in the last story [slashdot.org] ? Look at the UK and how absurd some of their free speech cases are! They must decide what is "grossly offensive" and what is "merely offensive" to determine if someone goes to jail!

Re:Subjectivity Is Very Dangerous! (1)

cjonslashdot (904508) | about a year and a half ago | (#41993811)

I agree it is a slippery slope. But there actually are standards. E.g., one cannot libel someone. And if you yell "fire" in a theater and there is no fire, you will be kicked out. But you are right that we must be careful about such standards because they can indeed be used to censor ideas. The censorship of ideas and of whistle-blowing are the main concerns in my opinion.

Re:Subjectivity Is Very Dangerous! (2, Insightful)

Anonymous Coward | about a year and a half ago | (#41993921)

Again, for your benefit: Libel is a standard. Loss of money can be proved. Loss of life can be proved. In the case of "fire" in a theater, lying can be proved.

However: Nice is not a standard. Specificity is not a standard. Offensive cannot be proved.

Re:Subjectivity Is Very Dangerous! (1)

MozeeToby (1163751) | about a year and a half ago | (#41994181)

And if you yell "fire" in a theater and there is no fire, you will be kicked out.

It's kind of a shame that things have changed so much that this phrase has lost all meaning. (Well, I mean, it's good that our fire codes have improved so a fire isn't so insanely dangerous, but I digress.) Yelling "fire" in a crowded theater is about annoying people, or even causing a panic. It's about killing people. Sometimes dozens of people. Several hundred people crammed into a dark, fabric filled room (not to mention all the flammable clothing) with a single exit? Lot's of people died in fires in those kinds of conditions and yelling fire was all but guaranteed to cause a stampede to the exit leaving people injured and dead. That is what the supreme court ruled was not protected, using speech in such a way that you know will cause harm and death to other people. And they had to argue that all the way to the supreme court to get a final decision: now think how easily our rights are eroded today and compare.

For reference:
http://en.wikipedia.org/wiki/Italian_Hall_disaster [wikipedia.org]
http://en.wikipedia.org/wiki/Royal_Surrey_Gardens [wikipedia.org]

Re:Subjectivity Is Very Dangerous! (1)

moeinvt (851793) | about a year and a half ago | (#41994675)

"... if you yell "fire" in a theater and there is no fire, you will be kicked out."

If you stand up and start reciting the "I Have a Dream" speech in a theater you would probably be kicked out as well.

Justice Hugo Black brilliantly deconstructed this "fire in a theater" nonsense. Sure, there would be consequences, but the consequences stem from the fact that you are violating the rights of the theater owner and the other patrons. It's not a limitation on the freedom of speech. The same reasoning would apply if you broke into my house and started delivering a speech in my kitchen. The prohibition against doing that isn't an infringement on your right to free speech.

If you owned or rented a theater and sold people tickets specifically for the purpose of hearing you speak, you can yell "fire" as many times as you want to.

Re:Subjectivity Is Very Dangerous! (2)

JesseMcDonald (536341) | about a year and a half ago | (#41994231)

Right now, we don't actively censor people who wish to yell "FIRE!" in a crowded theater. For what if there was a fire in said theater? Instead, we let everything be said and then if it is felt that libel, slander, criminal intent, death threats, etc were said, you may bring it to the attention of a court of law.

Punishing someone for speech after the fact is still censorship. In fact, censorship in practice, at the level of law, consists almost exclusively of punishing someone after the fact for unwanted speech. The presumption that speech involving libel, slander, etc. will be met with punishment is no less censorship than the presumption that speech criticizing the government will be met with punishment.

Libel and slander are not properly a matter for courts. First, one does not have a right to one's reputation, which would amount to a right to how other people think of you. Damage to your reputation is thus not something you should have legal standing for. Second, suing over libel or slander is counter-productive; it serves only to show how much you want to shut someone up. The more force you bring to bear against someone defaming you, the more credibility you lend to their statements. If the defamation is true then the damage to your reputation is deserved; if not, then the correct response is to educate and persuade, not to make threats.

In the case of "criminal intent" or other threats, you're not being punished for the speech; the response is pure self-defense. If you claim that you are going to harm someone, it is reasonable for them to believe that you will actually carry through with it and respond accordingly. (This could possibly be interpreted as a form of estoppel.) Naturally, the normal rules for preemptive self-defense apply: imminent threat of irreversible harm.

Re:Subjectivity Is Very Dangerous! (1)

VortexCortex (1117377) | about a year and a half ago | (#41994865)

Free speech is about free speech. Not ideas

I dare you to speak without any idea of what to say. Speech is the method by which ideas and information are conveyed...
Are you, by chance, Pentecostal? [youtube.com]

Re:It is about not lettting ideas be silenced (2)

geekoid (135745) | about a year and a half ago | (#41993685)

Incorrect:
" If the 1st Amendment is truly about ensuring that ideas cannot be censored, then free speech is not about permitting anyone to say purposely offensive things "
yes, it does.
Many people find speech against them is offensive.
Church's always find any speech that doesn't agree with them to be offensive.

You should read the federalist papers, and other documents the founding fathers wrote. Also understand formal written speech of the time. It's enlightening and give the Constitution context.

Re:It is about not lettting ideas be silenced (1)

cjonslashdot (904508) | about a year and a half ago | (#41993829)

Yes, good points.

Re:It is about not lettting ideas be silenced (2)

IndustrialComplex (975015) | about a year and a half ago | (#41993739)

So how do you reconcile this eventual outcome:

Corp A: newspaper
Corp B: movie studio
Corp C: social cause organization.

Can the government censor Corp A? Can they censor Corp B? Can they censor Corp C?

If the government can censor Corp C but not B, what if corp C produced a movie for their cause?

In your attempt to exclude organizations from inheriting the rights of the people who make up those organizations, you end up granting the government the authority to censor individuals by granting authority over all potential communication mediums beyond simple person to person speech.

The only way to get around that is to either grant very specific exemptions to government authority for certain types of corporations, that's a non starter because it would rely upon the government to define and regulate who falls into those corporations. In addition, it would default to a ban on speech for new communication methods until it was pre-approved for use.

An example of this in practice now is the broadcast television market vs content unregulated markets (internet/subscription/etc). Broadcast television has to pull a lot of punches or content because it falls afoul of the FCC's guidance.

Imagine now, that the FCC were not only regulating so-called vulgar content, but also tasked with evaluating political content! An organization would have to be very careful not to publish too much speech which could be considered 'organization' speech and not 'person speech'.

Fortunately or unfortunately, we really can't declare organizations of people to not inherit the rights of the people who make up those organizations without vastly reevaluating that which forms the very foundation of our system of governance.

Re:It is about not lettting ideas be silenced (1)

cjonslashdot (904508) | about a year and a half ago | (#41993959)

Yes, I agree. I don't know the solution. I only know that there is a problem. Perhaps it comes down to holding accountable the individuals who make decisions within organizations. After all, every communication by an organization is initiated by an individual. The problem is that organizations have aggregated power, and they are single-minded in their mission, whereas individuals can weight social benefits versus personal benefits. Organizations tend to be amoral - even sociopathic - and are therefore not "good citizens". And even worse, organizations use money to amplify their influence far beyond the influence of individuals. I don't know the solution though.

Re:It is about not lettting ideas be silenced (1)

readin (838620) | about a year and a half ago | (#41993965)

I am not a Constitutional scholar (although I have read the Constitution and refer to it frequently), but I would presume that "freedom of expression" and "freedom of speech" are intended to ensure that ideas cannot be censored.

I think the term "freedom of expression" is one of the big problems in figuring out how to apply the First Amendment to software. If we took the original text which said "freedom of speech" and "freedom of the press" we would see that it originally applied almost exclusively to words. When you speak, you speak words. When you print, you print words (ok, there were a few would cut pictures). The writers knew about things like music, paintings, sculptures and plays but did not choose to include them in the amendment. I think they're focus was on words and not on things like artwork (which they knew could be obscene).

Applying such a word-based test to software would be pretty easy. You can use the software to communicate any words you like, but things like pictures, games, and music could be regulated. Now many, perhaps most, of us would be pretty unhappy with a lot of regulations but we could use our freedom of speech to discuss and organize and use our votes to let the legislature know that. Slashdot, for example, would be completely free because it is a purely word-based site.

Re:It is about not lettting ideas be silenced (1)

cjonslashdot (904508) | about a year and a half ago | (#41994099)

Yes, I suspect it was about expression of ideas. Certainly ideas are the foundation of everything else, so protection of freedom to express ideas must be the core protection. Then again, ideas are often best expressed graphically....

Re:It is about not lettting ideas be silenced (1)

JesseMcDonald (536341) | about a year and a half ago | (#41994423)

I think they're focus was on words and not on things like artwork (which they knew could be obscene).

Are you implying that they didn't know that words can be just as "obscene" as artwork?

Also, people may speak exclusively in words, but a printing press can just as easily print graphics as words. You mentioned the possibility of woodcut illustrations yourself. Freedom of the press must naturally extend to printed images as well as printed words. Recorded audio had yet to be invented, of course, but lyrics and printed sheet music would have been covered, as would the scripts for plays. Sculptures were omitted, true, but that seems more like an oversight than deliberate intent.

Finally, it would not be sufficient to show only that the 1st Amendment only covers words; you would also need to point out where in the Constitution any branch of the U.S. government is granted the power to censor images, music, plays, sculptures, or the formal descriptions of algorithms colloquially known as software.

Re:It is about not lettting ideas be silenced (1)

readin (838620) | about a year and a half ago | (#41993993)

I also presume that the right pertains to people - not organizations. Organizations are not people, just as a pack of dogs is not a dog and a mob of people is not a person.

The First Amendment says (emphasis added):

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

An organization is a peaceful assembly of people.

Re:It is about not lettting ideas be silenced (1)

JesseMcDonald (536341) | about a year and a half ago | (#41995079)

An organization is a peaceful assembly of people.

Yes, and people have the right to assemble peaceably into organizations. That doesn't mean that the organization has rights. The people making up the organization have rights, which they can exercise on behalf of the organization.

(Of course, the same principle says that a government, as one form of organization, does not have rights per se; only the members of the government have rights, as individuals. A person acting on behalf of a government thus has no special right to act in ways which have not been explicitly delegated to that government by someone who does have the right. Good luck getting them to agree to that.)

Re:It is about not lettting ideas be silenced (0)

Anonymous Coward | about a year and a half ago | (#41994203)

> Organizations are not people

Organizations are collectives of individuals. The individuals in those orgs have a right to free speech. Hence you cannot censor an organization because doing so would censor it's members.

> And not machine generated content

Some person made the machine generate that content. Censoring the machine would censor the machine's creator.

Re:It is about not lettting ideas be silenced (1)

Charliemopps (1157495) | about a year and a half ago | (#41994213)

So far, the only thing on earth that can "Speak" is a person. Organizations are not only made up of people, but when they state things, someone had to write or speak that. Now you could argue that the individual speaker retains those rights, and the org does not... but the rights still exist. You can not, for example, prevent organizations from producing political adds. This was always unconstitutional... and it just took a long time for the court to finally address it. Does this right create huge problems? Definitely! Citizens united is a total pain in the ass, but they were correct. The solution to this problem eludes me, but stifling the speech of a few is not the answer.

Re:It is about not lettting ideas be silenced (1)

westlake (615356) | about a year and a half ago | (#41994817)

And since the Constitution is about the rights of people and government, I also presume that the right pertains to people - not organizations. Organizations are not people, just as a pack of dogs is not a dog

"The cheese stands alone."

People organize because they are sociable. They organize because they have needs and values in common. They organize because there is strength in numbers. They organize because they neded able and effective advocates.

Freedom of Speech and Freedom of Association are profoundly connected.

Re:It is about not lettting ideas be silenced (1)

roman_mir (125474) | about a year and a half ago | (#41994935)

Freedom of speech exists to protect your most important freedom: freedom to own and operate private property.

Without private property you do not exist because even your body is your private property and if you do not own it but the government does, then at any moment the government can decide to take it away from you (whatever the reason, for the 'common good' for example, from each by his abilities to each by his need and all that).

If you do own your body it is because after you inherited it from your parents, without your efforts your body would not exist. Your work is the reason that your body is alive. Your body at some point becomes the outcome of your effort. Likewise if without your effort other things would not exist you own them.

So if you work and create a product of some sort that would not exist without your effort, it is yours. You also have the right to use your own effort to try and achieve happiness (a better outcome in life, you have the right to attempt to improve your circumstances).

How does the freedom of speech come into play? It is a way for you to attempt and protect your private property when it is being attacked by forces outside of yourself, such as a government. Maybe you want to improve your circumstances by advertising a product that you have created. If there is somebody who is closer than you are to the government (more politically connected) and they want to get rid of competition in that product space that you are posing, then if you did not have the freedom of speech they could use political power to silence you and thus deny you your attempt at improving your circumstances. (By the way this is the reason that legal entities like companies, corporations also by extension have the freedom of speech, after all, they are a fiction, behind every corporate front there is one or more people. Ability to spend money on political action is also speech, it can be used to buy advertising for example).

Of-course everything that we say has bearing in the real world, a word it is not just an abstract, it nearly always has concrete implications in your life. When it comes to government very often the only power that you have against it is speech. If you are denied that then the government can change the system and also take away your right to private property and then to your body and thus to your life.

What must be understood is that on its own freedom of speech means nothing, it's a curiosity, nothing else. It is only important within the context that it can be used as an extension of your right to own and operate private property. That is because if you do not have the right to private property, then freedom of speech really cannot protect anything for you because you can own nothing.

However if you have the right to private property then you must have freedom of speech, the right to private property is absolutely incomplete without freedom of speech, because without freedom of speech you cannot protect your private property from government.

All of this needs to be understood in a wider context of freedom to self-determination, freedom to live your life without being abused by powers that are bigger than you, collective powers, tyrannical powers that are always in line to abuse you the moment you relax your guard.

Woo hoo (-1)

Anonymous Coward | about a year and a half ago | (#41993393)

SECOND!

So... another attack on free speech. (1, Insightful)

Anonymous Coward | about a year and a half ago | (#41993409)

There is no difference between asking google to retrive information and provide a report than it is to request a secretary to find all references to a contract and provide a report.

The "report" in both cases should be considered free speech.

Re:So... another attack on free speech. (2)

isilrion (814117) | about a year and a half ago | (#41993709)

I agree with you in principle, but:

There is no difference between asking google to retrive information and provide a report than it is to request a secretary to find all references to a contract and provide a report.

There is one, very important, difference: asking google to retrieve information is much more efficient than requesting a secretary to do so. That's pretty much the point of asking google. There are people in this forum who will claim that the difference is essential. I find that position nonsensical, but by ignoring it, you leave open a point of attack. So I would make your conclusion more explicit:

The "report" in both cases should be considered free speech, regardless of how efficient were the means used to obtain it.

(I would also go beyond free speech here and include those actions that are considered correct or legal to do by yourself but become illegal if you ask someone else for assistance, free or not. But extending on this idea would probably be offtopic)

I'm confused... (1)

Anonymous Coward | about a year and a half ago | (#41993423)

Why wouldn't the "speech" that is produced by the "automated" program, be speech from the author of the program?

Re:I'm confused... (0)

Anonymous Coward | about a year and a half ago | (#41993503)

Then couldn't you sue anyone with an RNG for libel? It produced this sequence which with this encoding means (whatever helps your case).

Re:I'm confused... (1)

maeglin (23145) | about a year and a half ago | (#41993749)

Then couldn't you sue anyone with an RNG for libel? It produced this sequence which with this encoding means (whatever helps your case).

I think the GP is close, but in some cases may slightly off. E.g., the speech is often that of the user of the software, not the author of the software. Imagine a word processor with a working grammar auto-correct feature. The auto-corrected text is not the text entered by the user but surely it's not the speech of the person who wrote the word processor. His speech is the software itself. Instead, the resulting document seems clearly to be the speech of the user.

To sue for libel the content must have been published somewhere and therefore there must be a publisher involved, even if it's just Joe from Joe's Blog fame. If I write a cron job to execute "fortune > index.html" every hour I am still the publisher of that content and am taking on risk of bad ju-ju occurring if the author of fortune slipped in something that could be considered libelous.

Of course this seems to break down for the purposes of the actual article. Using the above Google would be the publisher and the author would be the person actually providing the search query and interacting with the system. That seems a bit off to me. I suppose the trickiness of it all is why there's a debate in the first place.

Is the difficulty in neatly placing generated content into a predefined constitutional cubby hole a sufficient reason to encroach on the right of free speech? It should not be a matter of asking why generated content should be protected, rather, there needs to be a compelling reason why it should not be. Because once that right is gone we're not getting it back.

Re:I'm confused... (1)

YodasEvilTwin (2014446) | about a year and a half ago | (#41993515)

Why wouldn't speech that is produced by a child be speech from its parents?

Re:I'm confused... (2)

CanHasDIY (1672858) | about a year and a half ago | (#41994683)

Why wouldn't speech that is produced by a child be speech from its parents?

Really? You've gotta be trollin' me...

Maybe because children and parents are individual entities both endowed with their own, separate rights by the Constitution.

Conversely, a software program is a piece of work, created by a human, that has no rights.

As far as strawmen go, the one you built here is about as piss-poor as they can get.

It's God (-1)

Anonymous Coward | about a year and a half ago | (#41993433)

5:10 And it shall come to pass in that day, saith the LORD, that I
will cut off thy horses out of the midst of thee, and I will destroy
thy chariots: 5:11 And I will cut off the cities of thy land, and
throw down all thy strong holds: 5:12 And I will cut off witchcrafts
out of thine hand; and thou shalt have no more soothsayers: 5:13 Thy
graven images also will I cut off, and thy standing images out of the
midst of thee; and thou shalt no more worship the work of thine hands.

5:14 And I will pluck up thy groves out of the midst of thee: so will
I destroy thy cities.

5:15 And I will execute vengeance in anger and fury upon the heathen,
such as they have not heard.

It's ironic (2)

destinyland (578448) | about a year and a half ago | (#41993441)

I was really surprised there were almost no comments on this story...

Re:It's ironic (1)

YodasEvilTwin (2014446) | about a year and a half ago | (#41993525)

It was tweeted in the last couple minutes, I'm guessing that's when most of the comments start coming in.

Re:It's ironic (0)

Anonymous Coward | about a year and a half ago | (#41993547)

One's freedom of speech includes the freedom to say nothing.

Unless it's the machine generated output of /dev/null.

speech (3, Insightful)

phantomfive (622387) | about a year and a half ago | (#41993477)

Some courts go by the rule that if something is used as an attempt to communicate, then it is speech.
Other courts have gone by the rule that if it transmits information, it is speech.

I prefer the first rule, but this guy doesn't like either. He thinks that if something is generally accepted by society to be a method of speech, then it is speech.

He seems to come to this conclusion because in that case, he assumes software like word processors, servers, operating systems, etc, are not free speech.

Personally I prefer the courts that say if something is an attempt to communicate, then it is speech. A word processor is not an attempt to communicate, it is a tool. The source code of a word processor, however, most definitely IS a communication. It's not clear the poster understands the difference between source code and binaries.

Re:speech (2)

Quila (201335) | about a year and a half ago | (#41994685)

A word processor is not an attempt to communicate, it is a tool. The source code of a word processor, however, most definitely IS a communication

Source code communicates to a compiler how the compiler is supposed to function. But a binary communicates to the operating system and hardware how they are supposed to function. The binary is effectively your original communication interpreted into a different language, which, if it were a book, would be covered. Also, it is possible to write the machine language binary data from scratch, just as values inserted into memory locations, which would make the binary itself your source code. I've written that way.

Re:speech (1)

VortexCortex (1117377) | about a year and a half ago | (#41994901)

the difference between source code and binaries.

I can write software in machine code. Now what's this difference you're on about?

We have such sights to show you (1)

Dachannien (617929) | about a year and a half ago | (#41993585)

I think the answer to this question is best summarized by a quote from Hellraiser II:

"It is not hands that summon us - it is desire."

So it is with speech. Speech is present only by its intent.

The code is speech, but ability to USE it matters (1)

Qubit (100461) | about a year and a half ago | (#41993713)

If someone writes a program that facilitates the creation and retrieval of information, how can the program not be protected under the rule that “information is speech”? It seems that if we take the Sorrell approach, no software will ever be regulable—all software will be protected speech.

The code (and output) might both be considered protected speech.

The famous antitrust judgment finding Microsoft liable for excluding Netscape from Windows would have come out the other way, dismissed as inconsistent with Microsoft’s First Amendment right to convey information as it wishes. Apple’s wish to exclude disfavored books from the iPad eBook reader, or banish Adobe Flash from its iPhone browser, would simply be Apple’s speech.

But in both of these cases we're talking about monopolies -- either market-wide or specific to a particular device.

If consumers had the ability to jailbreak their Apple hardware and install whatever they wanted on there, or move any content OFF of there (SCOTUS is chewing on First Sale doctrine @now), then Apple's right to protection under Ammendment numero uno wouldn't give them carte blanche to get up in our business and do the hokey pokey all over our consumer rights.

The Netscape/Microsoft deal is a little more tricky, because unlike with Apple, Microsoft really did have a tremendous monoploy in the market at that time. In essence, Microsoft got to define the firmament, the earth, and everything inbetween. There wasn't any viable way to interact with computer-using consumers without building on top of Windows, and MS had/has complete control of that software. But even if the 1st ammendment does give MS more leeway on how it leverages its OS APIs to give preferential treatment to in-house applications, that wouldn't preclude the courts from recognizing the validity of other entities to reverse-engineer software and hardware for compatibility.

In short, greater freedoms for corporations under the 1st ammendment must be matched by greater freedoms for consumers and competitors under compatibility, reverse-engineering, and data freedom laws. More flexibility is great as long as the benefits are felt by all players in the game.

Why? (1)

Murdoch5 (1563847) | about a year and a half ago | (#41993763)

Why does software need free speech? I don't understand how that would help it, it someone would like to explain that to me great.

Re:Why? (1)

VortexCortex (1117377) | about a year and a half ago | (#41994983)

Why does software need free speech?

say( "Well, it doesn't really, if they just amend the 2nd amendment." );
say( "IMO, it should be ''right to bear technology'' not ''right to bear arms''." );
say( "Some of my software has been classified by the USBIS as though they were munitions..." );
say( "Failing a 2nd amendment exemption, the 1st amendment should be applied." );
say( "Otherwise, I can be prevented from freely expressing myself via my source code." );

Freedom of the press (2)

sourcery (87455) | about a year and a half ago | (#41993785)

The First Amendment also prohibits violation of the freedom of the press--which when written, referred to the technology of publishing, and not just to the profession of journalism.

A computer is a press in the sense meant by the First Amendment.

You lost me at "original purpose"... (0)

Anonymous Coward | about a year and a half ago | (#41993813)

The original purpose of the 4th amendment was that the government shouldn't spy on its own citizens and make their live difficult by the means of patriots act, NDAA and the like. The original purpose of the second amendment was that the people have the same weapons as the government so that there is no way that the government can enslave the citizens.

So why would anyone even bother arguing that the supreme court should look at the original purpose of the first amendment? They gave that idea up when they stood by when the second amendment was limited. When ignoring cases supporting gay marriage. When they validated the patriots act. When they okay'd Obama's forced reduction in the quality of health care policy.

You will never have freedom for yourself unless you support and fight for the freedoms of others.

Peter.

It shouldn't matter (1)

Hentes (2461350) | about a year and a half ago | (#41993945)

It shouldn't matter whether something was written by you, another person, software or a monkey with a typewriter. It's the parties that take part in the communication that are responsible for it. If we make a distinction, we will see lots of people evade responsibilities putting the blame on computers ("I didn't hack that company, a script that I've written did.").
Free speech shouldn't depend on how the speech in question was created. I can't help but feel that this is just another attempt to criminalize Google search results.

Hacking the Law (0)

Anonymous Coward | about a year and a half ago | (#41993947)

What Tuft seems to be trying to do with this is to hack the law. It is really beautiful. If the test which he proposes ("is it a culturally recognized medium of expression") is successfully folded into case law, especially at the SCOTUS level, some of the inane results of past free speech rulings in the U.S. may be easy to rectify.

Software is free speech. (0)

Anonymous Coward | about a year and a half ago | (#41993953)

Why wouldn't it be free speech? This means that if I use a calculator, "2+3=" is free speech, but "5" isn't.

What if I say the answer out loud, is it still not free speech because it's the calculator's answer? Even if I wrote the program?

Anything done on a computer is essentially an expansion of this, but really not any different.

When you ask, you already threw the law overboard. (0)

Anonymous Coward | about a year and a half ago | (#41994031)

When they said "speech", they very obviously meant *all* forms of communication. Of which data is just a digitized form. And software is data. End of story.

When you start a discussion about which parts of "ALL speech" are not part of "ALL speech", you already raped the first amendment, and you belong to jail. Also: End of story.

Of course (1)

interval1066 (668936) | about a year and a half ago | (#41994051)

Leave it to legislatures to make a simple rule regarding freedom much more complicated than it really needs to be.

Congress shall make no law ... (1)

D2inAlamo (2774721) | about a year and a half ago | (#41994199)

"abridging the freedom of speech, or of the press ... ." What part of that do people not get? It makes no distinction between people, corporate entities, etc. "no law."

Re:Congress shall make no law ... (1)

moeinvt (851793) | about a year and a half ago | (#41994447)

Exactly.

Far too many people have this idea that our rights (e.g. to free speech) are "granted" by government. The reality is that We, The People granted the government its power. Along with that, we placed certain specific prohibitions on that power. (thank $deity for that)

"Congress shall make NO LAW ...."

Same with Citizen's United. It's not about what "rights" organizations have, it's about what powers the government does not have.

Re:Congress shall make no law ... (1)

macbeth66 (204889) | about a year and a half ago | (#41994531)

Too late. They already have with their 'hate crime' legislation.

The particular case of Google's results (0)

Anonymous Coward | about a year and a half ago | (#41994241)

I think Google suppressing its competitor's results is not a first amendment issue. I think it's fraud. Even if it's not fraud, the court is tripping over its own stupidity with respect to "corporations are people". Google is not a person in the minds of anybody but precedent addled lawyers. Thus, Google has no rights. It's a corporation. Its very existence is a product of the state.

Hope it is speech, then it can't be patented. (2)

140Mandak262Jamuna (970587) | about a year and a half ago | (#41994343)

May be this is how we beat the insane software patents. Declare them as speech. Give the programmers first amendment protections. Then at best software can be copyrighted. So all software patents would become invalid! hooray!

Is an instruction manual "free speech"? (1)

moeinvt (851793) | about a year and a half ago | (#41994763)

Software is basically just a set of instructions. I don't see how it could be anything but protected speech. How the software is used is something else altogether.

I think the relevant example is the "Hitman" case. A company published an instruction manual for how to commit a murder/ assassination and someone used the info in the book to commit a murder. Obviously murder is a crime. Is the publisher of the instruction manual guilty however?

They got sued by the victims' families. Unfortunately, the publisher's insurance company decided to settle out of court. IMO, this would be the parallel to software.

http://en.wikipedia.org/wiki/Hit_Man:_A_Technical_Manual_for_Independent_Contractors [wikipedia.org]

This is (or should be) a non-issue (1)

swm (171547) | about a year and a half ago | (#41994873)

The author is trying to create a problem where there isn't one.
Software is speech.
Software is speech because it is text.
The kind of text that comes off of printing presses.
If freedom of the press means anything, it means the freedom to print
#include <stdio.h>
void main()
{
printf( "Hello, world\n");
}
Translation to x86 assembly and thence to machine code is inessential and does not affect the legal principle.
Neither does recording the resulting bits on machine-readable media.

Hang on (0)

Anonymous Coward | about a year and a half ago | (#41994893)

"Instead, the courts should turn to the original purposes of the First Amendment"

Woah! Slow down there. That's original intent.

Load More Comments
Slashdot Login

Need an Account?

Forgot your password?
or Connect with...

Don't worry, we never post anything without your permission.

Submission Text Formatting Tips

We support a small subset of HTML, namely these tags:

  • b
  • i
  • p
  • br
  • a
  • ol
  • ul
  • li
  • dl
  • dt
  • dd
  • em
  • strong
  • tt
  • blockquote
  • div
  • quote
  • ecode

"ecode" can be used for code snippets, for example:

<ecode>    while(1) { do_something(); } </ecode>