Every form of communication between different people that doesn't rely on telepathy or magic is wholly symbolic. You and I have learned to recognize, certain gestures, facial expressions, the English alphabet, and common utterances as forms of communication. Each of us might not understand Sanskrit writings, ideas spoken in German, and computer source code, but they are forms of human expression nonetheless. Computer programs are written in "languages" that are almost as diverse in type and in application as those we employ when we are away from our computers. They are simply another symbolic language that an author can use functionally or to express a range of his or her ideas and/or artistry. There is a grain of truth summed up in the phrase "code poet". Unfortunately computer software is already in use that allows computers to recognize some human gestures and facial expressions as forms of speech, but computers  can't understand the decisions of our courts or lawmakers any better than we do.

This is an area where our lawmakers and the U.S. courts have been known to get things terribly confused and fouled up. People who think that our civil liberties are suddenly being eroded simply haven't been paying much attention to their history. For example, in 1836 Congress banned debates on the issue of slavery, but that didn't stop the people from electing representatives with a mandate to debate and resolve that and other issues of transcendent national importance.  

The Sedition Act of 1798 endangered anyone who spread "false, scandalous and malicious" words against the government or its officers, to 'bring them "into contempt or disrepute." One observer at the time complained about the new law explaining that:

"Finding fault with men in public office is already an old American custom, indeed, it has become an essential part of the pursuit of happiness."

The act itself expired in 1801. Almost immediately President Jefferson pardoned those who had been convicted and sentenced under the Act and repaid their fines, stating:

"I discharged every person under punishment or prosecution under the sedition law, because I considered, and now consider, that law to be a nullity, as absolute and as palpable as if Congress had ordered us to fall down and worship a golden image."

The property forfeitures levied in some of the  prosecutions were eventually repaid by Act of Congress on the grounds that the original act itself had been unconstitutional, but the courts that levied the fines and forfeitures of property never admitted as much. Not, that is, until the Supreme Court finally concurred with the other two branches of government. The admission was made in a passing comment included in an opinion in 1964!  see New York Times v Sullivan Obviously if software patents are an encroachment on our freedom of speech, and it takes that long to get the courts to admit it, we are all in a great deal of trouble. "Intellectual Property" protections for software are entirely an invention of our courts.

It is bad enough when government officials misuse the powers they have been granted, but quite another thing when they simply decide that they have boundless discretion to enlarge their powers and to decide what is, or isn't, protected speech or subject to the laws of nature. It goes almost without saying that if "Congress shall make no law... ...abridging the freedom of speech, or of the press" the courts should remain silent in those matters as well. Professor Donald Knuth tried his best to explain to the U.S. patent office that algorithms and mathmatics are discovered, but not invented.

Many people mistakenly assume that copyrights and patents apply to all software because of the provisions of the U.S. Constitution. In fact the government offices charged with administering our copyright and patent programs contended for years that computer software was not entitled to any statutory protections. Not, that is, until they were ordered to extend certain protections to various types of software by the courts in cases like Apple v Franklin (1980), Diamond v Diehr (1981), and in Re: Alappat (1994).

Our constitutional system was based upon the concept of disclosure which is no longer being practiced by the bureaucrats or our Congress anyway. They never troubled themselves with obtaining a proper amendment to the constitution to permit such a thing either. For example copyrighted software source code cannot pass into the public domain when the term expires, since neither the government nor the public posesses an unencoded copy. Few of us would expect new advances from the type of software disclosures that might be made after the life of the author plus 75 years in any event. We ought to hold our elected representatives to account for this as if it were a constitutional crisis, because that is exactly what it is becoming!