Junger v. Daley
Held that encryption source code is protected speech. It is the clearest appellate holding that code is language.
Legal research
The record.
This page lists every authority we rely on and every authority that cuts against us, with links to the opinion or an official repository. We keep it honest so that legislators and courts can trust the rest of the site.
Case law
What the courts have said.
The authorities below include decisions that help the argument and decisions that cut against it. Every link goes to the opinion or an official repository.
Universal City Studios v. Corley
“Computer code conveying information is ‘speech’ within the meaning of the First Amendment.” Upheld the DMCA anyway as a content-neutral rule aimed at code’s function.
Bernstein v. Department of Justice
Found encryption export licensing an unconstitutional prior restraint, and recorded that the State Department had called the code “a munition under ITAR.” The panel opinion was withdrawn for en banc rehearing that never occurred.
Sorrell v. IMS Health
“The creation and dissemination of information are speech within the meaning of the First Amendment.”
Brown v. Entertainment Merchants Ass’n
Video games get full protection. The principles of free speech “do not vary” when technology advances.
Moody v. NetChoice
Algorithmic selection and arrangement of content “is expressive activity of its own.” The case concerned platform feeds, not model output, and was remanded on procedural grounds.
District of Columbia v. Heller
Defines “arms” broadly from founding-era dictionaries and extends the right to instruments “not in existence at the time of the founding,” subject to the “dangerous and unusual” limit.
Caetano v. Massachusetts
Stun guns are arms. A weapon is not unprotected because the First Congress had never seen one.
Bruen and Rahimi
Where the text covers the conduct, the government must show a historical tradition. New technology may need “a more nuanced approach,” but the law is not “trapped in amber.”
Defense Distributed v. Department of State
Gun CAD files were regulated as arms-export technical data. The court assumed both First and Second Amendment burdens but denied an injunction on national-security grounds. The 2018 settlement moved the files off the Munitions List.
Defense Distributed v. Attorney General of New Jersey
Held that “purely functional code with no actual or intended expressive use” is outside the First Amendment, and dismissed a “novel” Second Amendment claim over code for lack of standing. This is the strongest authority against us.
Garcia v. Character Technologies
Declined, at the motion-to-dismiss stage, to hold that chatbot output is speech: defendants “fail to articulate why words strung together by an LLM are speech.” Settled in January 2026 before any appeal.
Scholarship
Where the legal academy stands.
The First Amendment question has a serious literature on both sides. The Second Amendment question has almost none. Nobody has yet argued it in a law review, and nobody has yet refuted it.
For protection
- Eugene Volokh, Mark A. Lemley & Peter Henderson, Freedom of Speech and AI Output, 3 J. Free Speech L. 651 (2023).“Is the output of generative AI entitled to First Amendment protection? We’re inclined to say yes.”
- Toni M. Massaro & Helen Norton, Siri-ously? Free Speech Rights and Artificial Intelligence, 110 Nw. U. L. Rev. 1169 (2016).Current doctrine poses “surprisingly few barriers” to protecting AI speakers.
- Toni M. Massaro, Helen Norton & Margot E. Kaminski, Siri-ously 2.0: What Artificial Intelligence Reveals About the First Amendment, 101 Minn. L. Rev. 2481 (2017).
- Stuart Minor Benjamin, Algorithms and Speech, 161 U. Pa. L. Rev. 1445 (2013).Algorithmic outputs that entail substantive communication are protected under existing doctrine.
- Cass R. Sunstein, Artificial Intelligence and the First Amendment, 92 Geo. Wash. L. Rev. 1207 (2024).Restrictions on AI raise First Amendment problems whenever they touch human speakers or listeners.
- Corbin K. Barthold (TechFreedom), AI + 1A: Why the First Amendment Protects Artificial Intelligence, (2026).
- FIRE, amicus brief in Garcia v. Character Technologies, (2025).“Assembling words to convey messages and information is the essence of speech.”
- EFF & CDT, amicus brief in Garcia v. Character Technologies, (2025).“Chatbot output often reflects human expression that is entitled to First Amendment protection.”
- Josh Blackman, The 1st Amendment, 2nd Amendment, and 3D Printed Guns, 81 Tenn. L. Rev. 479 (2014); The Right to Code and Share Arms, 83 Law & Contemp. Probs. 1 (2020).“The Second Amendment supply chain protects a right to make arms.”
- Dan Terzian, The Right to Bear (Robotic) Arms, 117 Penn St. L. Rev. 755 (2013).Argues Heller imposes no hand-carried requirement; “there is no legal impediment” to new instruments becoming arms.
- Jan Kallberg, The Second Amendment and Cyber Weapons: Constitutional Relevance of Digital Gun Rights, IEEE Tech. & Soc’y Mag. 38(2):71 (2019).The closest existing analogue, treating dual-use software as a protected arm.
Against, or limiting
- Peter N. Salib, AI Outputs Are Not Protected Speech, 102 Wash. U. L. Rev. 83 (2024).“Absent a communication from a protected speaker, there is no protected speech.”
- Lawrence Lessig, The First Amendment Does Not Protect Replicants, in Social Media, Freedom of Speech, and the Future of Our Democracy (2022).
- Tim Wu, Machine Speech, 161 U. Pa. L. Rev. 1495 (2013).Warns against “First Amendment opportunism” by machines and their owners.
- Alan Z. Rozenshtein, There Is No General First Amendment Right to Distribute Machine-Learning Model Weights, Lawfare (2024).Weights “serve primarily as instructions to order machines to act.” Note that this concedes the instrument prong of Heller.
- Eugene Volokh, Large Libel Models? Liability for AI Output, 3 J. Free Speech L. 489 (2023).Protection is real but not absolute: defamation and the other historical exceptions still apply.
- Jane Bambauer, Negligent AI Speech: Some Thoughts About Duty, 3 J. Free Speech L. 343 (2023).
- Peter Henderson, Tatsunori Hashimoto & Mark A. Lemley, Where’s the Liability in Harmful AI Speech?, 3 J. Free Speech L. 589 (2023).
- Everytown Law, on the Third Circuit’s 2026 Defense Distributed decision.The gun-safety reading, under which functional code is regulable without a constitutional barrier.
- New Hampshire H.B. 1599 (2024), An Act Relative to the Use of Artificial Intelligence for Personal Defense.The only legislative text to call AI a Second Amendment arm. It was killed in committee, 20–0.
The honest objections
- No human speaker. Salib argues model output is not anyone’s communication. The reply from Volokh, Lemley, and Henderson is that listeners have First Amendment rights too, and the people who build, prompt, and read a model are humans.
- Functional, not expressive. The Third Circuit and Rozenshtein say code that does things is not code that says things. But the Second Circuit in Corley held code is speech even when it also functions, and the more “instrument-like” a model is, the better it fits Heller’s definition of an arm.
- Not “bearable,” and “dangerous and unusual.” Heller speaks of things worn or carried. A model on a phone is carried. And a tool used by hundreds of millions of people is, by definition, in common use rather than unusual.
- Export controls are not arms rulings. This is correct. Classifying something as a munition for export does not make it an arm for the Second Amendment. The argument here is about consistency: the state cannot call a model a weapon in one statute and a harmless appliance in the next.
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