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Comment by yuan43 | Hacker News Reader

> Given that code has been found to be protected free speech, at least in the US, causing its removal from GitHub seems like a clear violation of the constitution. ...

I doubt it very much. It is not a violation of the Constitution for the owner of a website to remove user-generated content. It happens all the time and has never been ruled to be unconstitutional.

> ... Cryptographer Matthew Green noted that, but also pointed out the irony of removing code from a distributed, decentralized revision-control system like Git. ...

GitHub != Git. And GitHub is not decentralized in anywhere close to the sense that Git is. I'm not sure where this author is getting their information from, but seems to be just repeating, uncritically, things said on the internet.

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The alledged unconstitutional behavior is not Github removing the code, but the policy (sanction) imposed by the US government that led Github to remove the code. The sanctions are unquestionably subject to constitutional review (although the details of how to apply that review in this case are not clear)

Would be curious on what basis it would be subject to constitutional review.

First amendment has always applied to government actors not also to companies who are enforcing sanctions.

The implication is that the sanction, which caused the removal of the code, is violating free speech. Github doesn't have a choice in removing it if they want to avoid getting sued.

So according to this premise I could dismantle the whole system:

1) I reach out to all possible sanctioned entities and offer to host dummy content.

2) At some point in the future they become sanctioned.

3) Under threat of sanction I then remove the content.

4) Sanctioned entity files a First Amendment claim to have the sanction invalidated.

> 4) Sanctioned entity files a First Amendment claim to have the sanction invalidated.

This should instead be "sanctioned entity files a first amendment claim to allow the dummy content to be freely hosted on the internet without punishment

> First amendment has always applied to government actors not also to companies who are enforcing sanctions.

So if goverment can outsource enforcement of sanctions to private actors then first amendment does not protect anything at all?

It protects you from going to jail for hosting this code on your own git instance. And GitHub isn't obligated to publish your speech, and you can't use the FA to compel it to do so.

If you could, I'd be getting in line to get my fifteen minutes of airtime on the telly.

If the USG prevents you from contracting the services of publishing platforms, I think that would be a proper 1st Amendment issue.

Probably the USG would argue that its interest in suppressing terrorist funding and money laundering overrides the 1st Am.

(IANAL/IMHO)

> If the USG prevents you from contracting the services of publishing platforms, I think that would be a proper 1st Amendment issue.

You don't have the right to compel a third party to enable your free speech.

And nothing is stopping Tornado Cash from running their own public Git server.

> You don't have the right to compel a third party

Sure, but that's not what's going on here.

The USG is compelling all third parties to refuse to provide the sanctioned entities with any services, which includes publishing services.

> nothing stopping Tornado Cash from running their own public Git server.

They will need to find an ISP willing to sell them bandwidth, which may prove difficult.

So if I host the code on my own server, and accept pull requests and modifications, the government can't force me to take it down right? I think that's the real question people are unsure about. Are the actions by github by their own choice or forced by the sanction?

In this case, maybe not, since the code isn't sanctioned.

In a general case, if you are distributing illegal speech, yes. Strangely enough, the first amendment does not protect me speaking, say, a copyrighted work...

oh this is easy, for Github Inc it chilled their speech as this sanction targeted expression by saying that interacting with the codebase is a sanctions violation.

Github Inc's speech and expression was chilled because they thought they had liability OFAC sanction. Its not clear if they actually had liability. But they didn't want to find out.

oh this is easy, for Github Inc it chilled their speech as this sanction targeted expression by saying that interacting with the codebase is a sanctions violation.

Github Inc's speech and expression was chilled because they thought they had liability OFAC sanction. Its not clear if they actually did. But they didn't want to find out.

if you want to have a rebuttal about some other scenario that you think would qualify as chilled speech, that scenario probably does and should also be challenged

You don't have an absolute right to arbitrary speech. I can't, for instance, do a public reading of a copyrighted work.

I don't see why this case requires constitutional review any more than, say, the concept of copyright.

have you ever noticed how legal analogies online often have fundamental flaws?

the first amendment to the constitution does not modify the original constitution, specifically article 1 section 8 of the constitution where by Congress has the power to enact laws to “promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries"

if you think of another analogy let me know

> have you ever noticed how legal analogies online often have fundamental flaws?

Yes, they do, and none have more flaws than people trying to equate <speech plus behaviour that is not speech> with <speech>.

> the first amendment to the constitution does not modify the original constitution

Where in the first amendment does it say anything of the sort? It's a pretty short one, only one sentence long, but I can't seem to find it.

When two parts of the document contradict eachother, it's not at all clear to me why you are giving precedence to the older one. To me, it seems that the more recent document should be the one that carries more weight.

But if we're going to go with the oldest one, I'd remind us that American law is based on precedents made in English common law, long before the United States was founded. Perhaps we could plumb millenia-old legal cases for precedents that the constitution and its amendments should not be overriding...

And besides, speech is a fundamental human right, far more important than the development of arts and science. You can't have the latter without the former.

It’s not unconstitutional for a company to think that they need (or want) to do something in response to a sanction.

GitHub is not in the business of being legally innovative.

It's not unconstitutional for GitHub to remove the code, it's unconstitutional for the government to force GitHub to remove the code via a sanction.

> it's illegal for the government to force GitHub to remove the code via their sanction

Yes. This isn't what happened. The code isn't sanctioned, the organization is. And these people were affiliated with the organization.

So if I go and upload my fork of that code to GitHub it won't be removed?

> if I go and upload my fork of that code to GitHub it won't be removed?

Nobody can say what GitHub would do. But they’d unlikely be under legal jeopardy from hosting it. (They may not want to bother with monitoring whether you continue to develop it or not, however.)

Why would they care whether I continue to develop it or not? I thought the code wasn't sanctioned.

They do not.

As I understand it, you are free to develop it. GitHub can't stop you from doing that. I'm not sure of your point here.

> Why would they care whether I continue to develop it or not?

If you continue developing it academically, that’s fine. If you’re developing it to deploy it, that could be problematic. Most people don’t want to deal with customers where they have to monitor that distinction. (Those folks can always just host the code themselves.)

Code is both speech and action, like libel or threats. While the content of the speech might be protected under the First Amendment, the act embodied in the speech might be criminal or tortious.

In this case, while the content of the code might be protected, the activity it embodied violated the rules of multiple Western countries, not just the laws of the U.S.

Code is not action, running the code is. Same with anything else. It's not illegal to post instructions on how to strangle people.

Then surely the code itself is incitement to that action?

That's as much an incitement to action as revving an engine at a red light is incitement (it's not, see entrapment laws). You don't have to run the code.

Private companies can of course choose to host whatever they want. And it's certainly not possible for Github to behave unconstitutionally because Github is not the government.

But... the fact that speech was removed from a platform in obvious response to legal uncertainty created by the government, puts OFAC in serious hot water. When it comes to First Amendment issues, modern SCOTUS decisions have been extremely focused on "chilling effects". And it's near undeniable that Github's removal based on the timing was a consequence of chilling effects created by OFAC action, whether intentional or not.

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