First amendment has always applied to government actors not also to companies who are enforcing sanctions.
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.
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
So if goverment can outsource enforcement of sanctions to private actors then first amendment does not protect anything at all?
If you could, I'd be getting in line to get my fifteen minutes of airtime on the telly.
Probably the USG would argue that its interest in suppressing terrorist funding and money laundering overrides the 1st Am.
(IANAL/IMHO)
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.
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.
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...
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.
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
I don't see why this case requires constitutional review any more than, say, the concept of copyright.
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
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.
GitHub is not in the business of being legally innovative.
Yes. This isn't what happened. The code isn't sanctioned, the organization is. And these people were affiliated with the organization.
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.)
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.
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.)
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.