There is no difference between code and writing. I think I can prove it. Manila, the content management system that I use, supports macros. When you put text in curly braces, as the page is rendered, the macro is evaluated. Such macros can be embedded in protected speech, ie prose. What goes inside the curly braces is program logic. So if I want First Amendment protection for my code all I have to do is embed it in a Web page.
Source code should be a protected form of speach, as in free speach protection. Nuf said.