BY PETER SCHEER—The court battle between the FBI and Apple presents an important first amendment issue: whether the government can force a company to engage in expression—to wit, the writing of computer code—-that the company not only objects to, but views as inimical to its interests and its customers’ interests.
Apple claims that this coercion violates its first amendment rights. Can this argument really succeed? Yes, in my view. Although Apple’s argument is somewhat overstated—as are all arguments in litigation—the order against Apple is a forbidden form of government censorship. Instead of barring the company from saying what it wants to say, the order compels Apple to say something it doesn’t want to say.
The computer program that Apple has been ordered to write for the FBI would disable some of the iPhone security features that are, at this writing, preventing the FBI from cracking the personal password on an iPhone used by Syed Farook, who, with his wife, Tashfeen Malik, killed 14 people in a December 2 terrorist attack in San Bernardino.
There’s no doubt that computer code is “speech” for purposes of the first amendment’s free speech safeguards. Like the symbols in a musical score, code is expressive and communicative, even if it doesn’t necessarily translate to words. Code can be functional as well, but that does not detract from its speech-like qualities. The equivalence of code and speech has been acknowledged in multiple appeals court decisions (while the Supreme Court has yet to address the question).
It’s also clear, from Supreme Court decisions going back over 50 years, that government coercion of speech triggers first amendment scrutiny. For example, the Court struck down New Hampshire’s requirement that cars display the state’s motto, “Live Free or Die,” on license plates. Forcing citizens, against their will, to promote the state’s message is an impermissible infringement of citizens’ free speech rights, the Court held. For the same reason, public schools can’t compel students to say the “Pledge of Allegiance,” and newspapers can’t be required to offer a “right of reply” to public officials criticized in the papers’ editorial pages.
In more recent cases, the Court has held that organizers of a private parade could not—consistent with the first amendment—be required to include a group whose message interfered with the organizers’ intended message. The Court has also invalidated a rule requiring a regulated utility to include a consumer watchdog’s newsletter in the envelope the utility used to bill its customers.
There are limits to this theory, however. Free speech protections do not categorically prohibit all instances of government coercion of speech. For example, public corporations are required by federal law and regulations to disclose, through filings with the Securities and Exchange Commission, extensive financial data about their operations and any material changes in financial circumstances. No one would seriously contend that mandating these communications and messages—which may often include statements with which corporate management disagrees—-violates the constitution.
The same is true for other products and services subject to comprehensive regulation to protect consumers. Advertising and labels for medications are dense with health warnings and disclosures. These are not only mandated by government, but government agencies control their content down to the exact words used and where they are located. Another example: disclosures required of companies selling financial products and services, especially when marketed to unsophisticated investors.
Government compulsion of speech, though generally forbidden, may be sustained if the compulsion derives from, and is necessary for enforcement of, a comprehensive system of regulation designed to protect consumers or the public. Comprehensive regulations, as in the laws establishing the Securities and Exchange Commission or the Food and Drug Administration, reflect considered policy choices, and the balancing of competing interests, by the law-making branch of government.
Where does this leave Apple in its battle with the FBI? The court order directing Apple to write security-weakening code transgresses first amendment limits. It is coercive speech of the kind the Supreme Court has consistently disapproved, and it cannot be justified as part of a Congressionally-prescribed, comprehensive system of regulation.
The order against Apple is based on the All Writs Act, an 18th Century (really!) statute conferring power on federal courts to issue injunctions and other orders “necessary or appropriate in aid of their respective jurisdictions . . .” This is an historically important grant of power to federal judges to enforce their decisions. However, it is not a source of legal authority for rendering those decisions in the first place.
Nothing in the All Writs Act authorizes the Magistrate’s underlying decision limiting the amount of encryption that may be offered on smartphones. The Magistrate’s order, after all, does not merely require the production of some existing records, data or information–the standard fare for search warrants or subpoenas. It requires, rather, that Apple take affirmative steps to create, for the FBI’s use, new code that compromises the encryption that Apple designed as part of the iPhone’s operating system.
Congress conceivably could pass a law giving federal courts (and the FBI) this power as part of a comprehensive regulation of security, including limits on encryption of data, for hand-held devices. But Congress hasn’t done so. It has addressed this complex subject only in a law (the Communications Assistance for Law Enforcement Act) regulating communications “carriers.” (Think AT&T, Verizon, T-Mobile, et al).
The All Writs Act is a far, far cry from the kind of federal statute that can overcome the first amendment’s prohibition against government coercion of speech. The Act says nothing about digital security and encryption. And a law that says nothing about a subject matter obviously can’t be characterized as comprehensively regulating that subject matter.
Bottom line: The first amendment strips the courts of power to compel Apple to write new code to disable security features on the San Bernardino iPhone. Free speech protections are triggered by the order’s directive to Apple to create a computer program. Although the “coerced speech” doctrine is subject to a limited exception for certain comprehensive regulatory laws, that exception is not available here.
Peter Scheer, a lawyer and writer, is executive director of FAC. The views expressed here do not necessarily reflect the position of the FAC Board of Directors.