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As of 2003, court systems are in the process of deciding whether source code should be considered a Constitutionally protected form of free speech in the United States. Proponents of the free speech argument claim that because source code conveys information to programmers, is written in a language, and can be used to share humour and other artistic pursuits, it is a protected form of communication. The opposing view is that source code is functional, more than artistic speech, and is thus not protected by First Amendment Rights of the U.S. Constitution.

One of the first court cases regarding the nature of source code as free speech involved University of California mathematics professor Dan Bernstein, who had published on the internet the source code for an encryption program that he created. At the time, encryption algorithms were classified as munitions by the United States government; exporting encryption to other countries was considered an issue of national security, and had to be approved by the State Department. The Electronic Frontier Foundation sued the U.S. government on Bernstein's behalf; the court ruled that source code was free speech, protected by the First Amendment.

In 2000, in a related court case, the issue was again brought under some scrutiny when the Motion Picture Association of America (MPAA) sued the 'hacker' magazine 2600 and a number of other websites for distributing the source code to DeCSS, an algorithm capable of decrypting scrambled DVD discs. The algorithm was developed to allow people to play legally purchased DVDs on the Linux operating system, which had no DVD software at the time. The US District court decision favored the MPAA; 2600 magazine was prohibited from posting or linking to the source code on their website. This ruling was widely considered a victory for the supporters of the Digital Millennium Copyright Act, as it established a legal precedent for the notion that source code is not Constitutionally protected free speech. It was affirmed by the Appeals Court and as of late 2003 is being appealed to the US Supreme Court.