Neil Richards writes in Technology Review about Apple’s attempt to defend itself in the San Bernadino IPhone case by claiming protection under the First Amendment (i.e code = speech).
As Kate Crawford points out, the danger of this approach is that equating code with speech could allow algorithms to act in discriminatory ways under First Amendment protection.
E.g Giving discriminatory algorithms the same constitutional protection as political novels would make a mockery of civil rights law.
— Kate Crawford (@katecrawford) March 1, 2016
It seems to me that a key distinction here is speech vs action. Algorithms that make decision might be viewed as “acting” and there’s no First Amendment protection for actions that can discriminate. But then again, I’m not a lawyer.