In a 2003 court case in the United States, it was ruled that source code should be considered a constitutionally protected form of free speech. Proponents of free speech argued 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.

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 anencryption 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