Are the current injunctions cases of prior restraint on free speech?
It is axiomatic that injunctions are restraints. Because injunctions prohibit future events, a court which enjoins speech is making a prior restraint. Moreover, a preliminary injunction even on continued publication of existing speech prevents that speech before its legality can be tested in a full trial on the merits. The question at hand is if programs or source code are speech. In Junger v. Daley and Bernstein v. Department of State, U.S. courts have ruled that source code is protected speech. While neither of these decisions is binding in the NY or CT lawsuits, their reasoning, that source code has expressive content, should be persuasive in other Circuits. The issue of whether executable programs are protected by the First Amendment has not been definitively addressed by a U.S. court. An executable program contains both expressive elements (speech) and functional elements. Although the government may have an interest in regulating the functional elements of a program, if such a re
