The "code is speech" argument is more subtle than people appreciate here. "Speech" is not a type of thing. "Speech" is something someone does. A black armband can be speech when it's being used to express an idea, or it could just be an article of clothing.
In my opinion, code in its functional capacity is not speech. The code that locks the user out after 10 tries is just the digital equivalent of a gear or valve: a functional building block of a machine. A gear in its functional capacity is not speech, but can be if used in a piece of sculpture for example.
In this particular context Apple has a stronger argument, though. The act of signing code does express an idea: Apple's trust in the code. That might well be protected speech.
>In my opinion, code in its functional capacity is not speech. The code that locks the user out after 10 tries is just the digital equivalent of a gear or valve: a functional building block of a machine. A gear in its functional capacity is not speech, but can be if used in a piece of sculpture for example.
That makes some sense, but I would distinguish between the use of an object and the creation of an object. Wouldn't designing a new gear or a new valve be speech? Are you arguing that there's no 1st amendment defense if the government tried to compel someone to design a new valve?
The first amendment protects communication of ideas between people. What idea is communicated by a new gear design? What idea are you communicating when you write a function to lock a user out after 10 tries?
A fair point. I guess what I'm getting at is whether the creative process is an "action" that the government can compel, or "speech" that cannot be so compelled. Is it constitutionally allowable for the government to force someone to design something?
In this particular case, there isn't any creative process being compelled or even anything being designed. It's turning off a couple of security features. It's as creative as flipping a light switch.
So do this thought experiment: Apple is ordered to create fbiOS, and one or more engineers baulks and says: "This order is compelling me to write code, thereby compelling speech from me, and I refuse to write it." And she's sent to jail for contempt of court.
Your argument rests heavily on code that exists. It's much easier to argue that isn't speech just because it's easier to call it an object, an artifact. A gear. A knob. But before code is written, it is in the realm of thoughts.
In my opinion, code in its functional capacity is not speech. The code that locks the user out after 10 tries is just the digital equivalent of a gear or valve: a functional building block of a machine. A gear in its functional capacity is not speech, but can be if used in a piece of sculpture for example.
In this particular context Apple has a stronger argument, though. The act of signing code does express an idea: Apple's trust in the code. That might well be protected speech.