"code in the context of instructing a computer to perform encryption is not speech." the decision cited from 1999 by the appellate court specifically considered this and found the opposite. As long as your phrase "Code in the context of instructing..." means source code, then they disagreed wholeheartedly with you. They found that people in the encryption field universally used source code to convey ideas and to communicate. They argued that utility of something doesn't revoke it as speech, as the parent to your comment noted. They did not take into consideration CD's with object compiled code on them nor easily scannable papers, which they note are a dubious prospect to begin with--being limited by the same export restrictions.
What the appellate court held was that just because source code may be used to instruct a computer does not mean that it's not speech when used "to convey ideas and to communicate." That does not mean that source code is speech when used to instruct a computer. It means that source code isn't not speech just because sometimes you use it to instruct a computer. Logically, those are two very different statements.
The court wasn't saying that the government can't regulate what you can and cannot program a computer to do. It was saying that the government cannot restrict sharing of source code between people, which is often used to communicate ideas.
