It's not speech if you're not communicating an idea with it. You build a sculpture out of bricks it's speech. You take it apart and build an outhouse, it's not speech. It's not the substance of the thing that makes it speech or not. It's whether a human is using it to communicate ideas with other humans.
AnthonyMouse has already clarified: It's the same information. My question, to which you are not responsive was: At what point does the same information magically become not speech? You are relying on perception, not on reality. It's always the same information. But it's easier to perceive it being a cog or lever inside a computer. But we all know that code is code. Compiled, decompiled, encrypted, compressed, translated, etc. It's all code all the time, and it's all speech all the time. You are bordering on some kind of Deepak Chopra-esque quantum mysticism that says humans must perceive speech in order for it to be speech.
> You are bordering on some kind of Deepak Chopra-esque quantum mysticism that says humans must perceive speech in order for it to be speech.
Speech is a thing humans do, not a characteristic of bits or bricks or black armbands. The First Amendment doesn't protect particular types of things. It protects communications between humans. If one human isn't using a thing to communicate to other humans, it's not speech.
> If one human isn't using a thing to communicate to other humans, it's not speech.
Imagine a coder refusing an order from the FBI to create a tool. She is refusing to translate her thoughts into code. What is that other than refusing an attempt to compel speech?
There is only one human in this picture. But the code an FBI order is attempting to extract from her brain is still speech.
> She is refusing to translate her thoughts into code.
You seem to be mixing up the standard for the fifth amendment and the first amendment. The fifth amendment says that the government can't compel you to testify against yourself, and that a physical action (like punching in a key code) can be testimonial if it involves accessing one's thoughts. The fifth amendment doesn't apply here because Apple is under no threat self-incrimination.
And "accessing your thoughts" is not the test under the first amendment. The test is whether the speaker is expressing an idea. Instructing a computer to do something is not expression, it's not communication with another human. It's a human acting on an inanimate object. The fact that the action involves accessing one's thoughts is irrelevant. E.g. the government can definitely compel a bank employee to punch in a key code to unlock a vault, even though that involves translating thoughts of the combination into a sequence of key presses.
NB: it's kind of interesting to be splitting hairs over what is and is not speech here. A court can compel you to come in and testify against someone, which is undoubtedly speech. Yet the power to compel testimony is one of the fundamental powers of a court, and has never been understood to be a violation of the first amendment.
You can be compelled to recite facts you may know, when there is some evidence that you know them. Not infrequently, witnesses claim not to have known, not to have a reliable account, or not being able to recall those facts.
This is substantially different from compelling coders to discover how to break their own secure implementation and implement a deliberately broken implementation. This is compelling a creative work, and a particularly perverse one.
Not trying to be pedantic, but doesn't an outhouse communicate messages? For instance "there's probably human waste here.", "Poop inside this rather than next to it" etc.
All of the points in this thread which indicate a distinction between what is and is not speech are all based on the legal precedents up until this point. The US legal system finds precedents valuable, but there's always an opportunity to find some new distinction or test.
SCOTUS can make special distinction for encryption because implementations in practice are both a tool with independent utility and communicate an idea.
If you take a sculpture apart then it no longer conveys the same information.
The code cryptographers use to communicate ideas is the same code the computer can execute. Are you contending that the same information is speech sometimes but not other times? What if the thing you're going to do with the information hasn't even been decided yet at the time of dissemination?
