FOR RELEASE: March 3, 2016
Contact: Richard T. Kaplar
The Media Institute
Arlington, Va., March 3, 2016 – The Media Institute filed an amicus brief in a California federal district court today, saying that the FBI’s attempt to order Apple, Inc. to write code to “unlock” the contents of an iPhone amounts to compelled speech under the First Amendment, and therefore must meet the standard of strict scrutiny.
“This case presents a fundamental question about the government’s authority to lawfully require a private actor to speak consistent with the First Amendment,” the brief states. It notes that federal courts have determined that computer code is speech protected by the First Amendment.
By forcing Apple to create speech that it would otherwise not make and with which it disagrees, the FBI’s order falls squarely within the jurisprudence of compelled speech and requires the FBI to meet the heavy burden of strict scrutiny.
Moreover, the FBI’s order undermines the interests of the news media in protecting their autonomy in government investigations and in maintaining confidential communications. The authority the FBI seeks under the All Writs Act would place the independence of the press at risk, the brief states.
The Institute notes that the federal court could avoid the difficult First Amendment issues presented by the order by ruling narrowly and adopting a proper interpretation of the All Writs Act, which would deny the FBI order before reaching the more difficult constitutional question.
The Institute’s brief was written by noted communications attorney Kurt Wimmer, who is the U.S. Chair of the Privacy and Data Security practice of Covington & Burling LLP and a partner in its Washington office. He is a member of the Board of Trustees of The Media Institute and chairs its First Amendment Advisory Council.
The Media Institute is a nonprofit research foundation working to advance sound communications policy, freedom of speech, and excellence in journalism. For more information, visit the Institute online at mediainstitute.org.
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