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Comment by colinmhayes | Hacker News Reader

Executing code isn't speech. Code is speech, and it's being allowed.

> Executing code isn't speech

This is for the courts to decide I guess

Really? If I execute a script that DDoS someone, presumably it should not be treated as "speech" as if it is a protected right. That's such a hilariously slippery slope since you can arguably do "anything" via executing code.

Nah your example is more like performing a magic spell that prohibits others from speaking (DDoSing a public service site, as an example)

Denial of service attacks are explicitly illegal under the National Infrastructure Protection Act (NIIPA). I don't think a defendant has ever successfully challenged that law on First Amendment grounds, so the basic legal issues appear to be settled.

Of course as a practical matter it can be difficult to prosecute DDoS attackers under that statute. Either they don't leave hard evidence, or they hide in countries which don't extradite.

Courts have already decided this decades ago. At least as far back as Junger v. Daley [1], where the courts recognize a distinction between the expressive power of code as it is read by a person and the functional power of code when it is executed. While the expressive power of code creates a first amendment interest, the functional power of code may create a legitimate government interest in regulating that speech.

The applicable legal test is from United States v. O'Brien [2], which ruled that even though burning a draft card may be expressive speech, the government's interest in draft cards not getting burnt allows them to forbid it without falling afoul of the first amendment.

Junger v. Daley was cited as precedent in Universal City Studios v. Reimerdes [3], where the courts ruled that the functional power of DeCSS being illegal under the DMCA was sufficient to justify banning the distribution of the DeCSS source code.

[1] https://en.wikipedia.org/wiki/Junger_v._Daley

[2] https://en.wikipedia.org/wiki/United_States_v._O%27Brien

[3] https://en.wikipedia.org/wiki/Universal_City_Studios,_Inc._v...

Okay that solves the First Amendment part, in your view (Citizens United is an example of ruling that transactions are speech, alongside its view that Corporations are afforded these protections)

It doesn't solve Congress’ mandate to the Treasury where OFAC is used against entities that can appeal their own listing on the sanctions list. The smart contracts cannot currently do that.

Citizens united is unique because it is specifically about political actions which are the whole point of the first amendment clause about speech according to originalists. You've also mischaracterized the ruling, which was that spending money on political action is speech, not transactions.

If speaking magic spells aloud caused flesh-eating demons to be summoned into our prime material plane, you wouldn't be allowed to speak magic spells, either. Klaatu, Verata, Necktie.

Speech is speech, code can be spoken, and it can also be executed. The former is speech, the latter is action. Making API calls and flipping bits in a computer is what crosses the line from one to the other.

> If speaking magic spells aloud caused flesh-eating demons to be summoned into our prime material plane, you wouldn't be allowed to speak magic spells, either.

Yes? This is entirely reasonable if we analogize it to how fiction often approaches it. There might be some evil book, a necronomicon, or killing spells like in Harry Potter. In many fictional media, people are allowed to learn such spells, they're just not allowed to say the spells out loud. Reading and writing a spell is not the same as saying it and thereby executing it.

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