Is Hate Code Speech?

["Albert P. Franco, II" <apf2@apf2.com>]

>From: mcw@atreus.ncs.ncsc.mil
>Subject: Is Hate Code Speech?
>


>I acknowledge that you're welcome to use whatever variable names you
>want in code you write in private. BUt if you want to sell that code, it
>should be held to a standard of professionalism.
>

I think it is interesting that people are speaking of  the program as
something published for public consumption. Source code for commercial
products rarely goes public and compilers do a rather nice job of obscuring
human language variable names. Thus if there is any message or coherent
agenda in the source code it is highly unlikely that it will be detectable
in the executable, which is in fact the product delivered to the public.

Since the source code can only be read by insiders/employees then this does
tend to make it rather obvious that a form of speech was intended. I won't
rehash the fact that non-relevant, human-language-significant variable
names (as opposed to x, y, i, & j) are generally unacceptable programming
practice. I would make two points; that in todays programming world source
code is protected by copyright law as are other forms of expression legally
considered speech and source code is intended to document the process and
as such communicate ideas--in a broad sense this is a decent description of
speech, a written mode of communicating ideas. 

If someone finds offensive (hate) material in an obscured text (encrypted)
intended for limited distribution, does the encryption make it less
hateful? does the encryption make it any less a form of speech? does the
fact that distribution is limited (assumming the "target" is in the
distribution class) make it any less offensive? Is a crime less illegal if
it is hidden? (Be careful, on this one...)

I think that offensive, probably hateful, speech was intended. So the next
step (or for others, a previous step) is to decide whether there are legal
grounds for action. There are several laws which do, in fact, make these
activities illegal. Most people in the US today agree that overt racism is
wrong. Additionally, most "Americans" agree with laws that make it illegal
to use/perform "hateful" speech. 

These are very dangerous laws since they try to tread a very thin line
between the freedom of thoughts (and to some degree, actions) and injury to
others. When I first settled down to live in Spain and began to pay real
attention to the local political scene I was astonished to find people
defending the "right" of the radicals to throw stones and metal objects at
those persons expressing ideas contrary to theirs (pro-peace,
anti-terrorism demonstrations, 1995-6). Fortunately, we hear less and less
of this non-sense that physical harm to another is a valid form of personal
expression or speech. But the base problem lingers, where do we draw the
line of expression of ideas and intent to do harm. It has long been held
that shouting "fire" in a crowded building is not a protected form of
speech. Nor is libel (forgetting for now the problems of defining or
proving it). And where do we draw the line (or does it even matter?)
between public and private? And where do expression and action get
separated? Thinking about doing something, or telling some one about those
thoughts are not generally the same as actually doing it. But where does
thought become expression become action?

This case doesn't solely revolve around the speech issue...IMO, it also
revolves around the public/private issue, and whether or not the government
can rightfully "enter" a "private" business place to regulate these
matters. Recent history (80 years or so...) shows an increasing tendency
for the government to "protect" workers by regulating the workplace. There
are health & safety regs, minimum wage regs, etc. The "American" populace
has in general supported (and at times demanded) these external limits on
the "private" employer/employee relationship. Legal precedent exists.

There are two problems here and historically the government has been called
upon to keep a balance between "free speech" and "harmful speech" on the
one hand and "Privacy" and "Protection" on the other hand. The debate now
is with this case which way will (should?) the pendulum swing? More
protection (reduction of privacy), more freedom (or hateful speech)... 

Personally, I hope no one wins this eternal debate 100% since the results
would be disastrous.

Just some thoughts...

Albert P. Franco, II
encryption@apf2.com