Re: [dvd-discuss] Re: The Grounds for Appeal

["Peter D. Junger" <junger(at)samsara.law.cwru.edu>]

Jim Bauer writes:

: Claus Fischer <claus.fischer@clausfischer.com> wrote:
: >Even supposing the code had functionality I flatout refuse to
: >acknowledge that this is a reason for it losing the speech
: >protection. The point about conduct is, conduct makes the thing
: >lose its speech character, therefore it is non-speech and need
: >not be protected. The alleged functionality in this example
: >may at most be in addition to the speech quality, not changing
: >the fact that the code is speech. Therefore code is still speech.
: 
: 
: If code is functional, then isn't (almost) all speech also
: functional?  The function being to communicate.

The clearest examples of functional speech that I can think of
are 1.) prayers and magical charms and 2.) legal instruments
including contracts, wills, and enacted laws.

As to category 1.) it would violate the establishment clause of 
the Constitution to deny that prayers anc magical charms are 
effective.  As to category 2.), if the courts were to claim that
legal instruments are not effective, they would have to go out
of business.  Yet surely prayer books and legal form books are
protected by the freedoms of speech and of the press.

--
Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH
 EMAIL: junger@samsara.law.cwru.edu    URL:  http://samsara.law.cwru.edu   
        NOTE: junger@pdj2-ra.f-remote.cwru.edu no longer exists