"Code is speech" is absurdly reductionist in most cases.
Yes, the government censoring Tiktok's source code on Github would be a freedom of speech violation, but that's not what this is about, is it? See also: Tornado Cash. Publishing code facilitating money laundering is fine (you'll find the code still on Github!); running said code to facilitate money laundering isn't.
Or to go with an even more extreme example: Writing code for a self-aiming and firing gun is speech [1], running said code on a gun in your driveway isn't.
The fact that we are still debating such basics of the First Amendment here is baffling. This is almost as trivial as the other well-known limitations in my view (shouting "Fire!" in a crowded theater etc.)
[1] At least at the moment, and as far as I know; I think we might see this type of speech being restricted in the same way that some facts about the construction of nuclear weapons are "innate state secrets".
American companies (Google and Apple primarily) have been told by the government that they cannot distribute binaries running certain code to Americans. That seems like the real 1st amendment issue to me and I was quite surprised to learn that ByteDance only claimed that their own 1st amendment rights were being infringed on (which personally I find to be flimsier).
EDIT: Tornado cash was taken down from GitHub though, so you don't have a point here
The code isn’t the main issue here, it’s the online platform. The apps were only banned as a means to access the platform, not fir the code they contain. The code would be largely useless without the platform infrastructure and data storage behind it.
Huh? It's up as a public archive on tornadocash/tornado-core as we speak.
> American companies (Google and Apple primarily) have been told by the government that they cannot distribute binaries running certain code to Americans.
Yes, in the same way that American companies and individuals are routinely prohibited by the government from distributing other binaries to Americans, most notably anything that circumvents DRMs as regulated by the DMCA.
I really don't think the people that drafted the First Amendment had apps in mind when they thought of "speech", and would probably consider them something more like machinery (a printing press, a radio (not a radio station!) etc.) Interpreting Tiktok as a type of newspaper (which are widely protected even in democracies without an equivalent to the First Amendment) is much less of a leap of faith compared to considering an iOS executable speech.
Interesting, I didn't follow the tornado cash case super closely, but I do recall it being taken off GitHub for a short time.
So I would also argue that restricting DRM bypassing software is a violation of the 1st amendment and, more importantly, that it's a bad thing to restrict.
We'll never know what they would have thought, but I'll add that actual plans for machinery are definitely speech. We certainly do restrict these plans, with ITAR most notably, and I think it's reasonable to draw that line somewhere.
Note that I never said banning TikTok was as bad idea, just that it restricted speech by way of limiting distribution (which oddly looks unconsidered in the supreme court case), which it absolutely does. I'm uncomfortable with this level of power being granted to the government, but given that TikTok is obviously a spying/malware delivery tool by a foreign borderline hostile government I think it's probably warranted.
I think not being somewhat disturbed by the United States government restricting distribution of an application is a bit weird TBH. That's a huge power to have and can definitely be abused, especially if it's made easier to do so in the future.
Yes, the government censoring Tiktok's source code on Github would be a freedom of speech violation, but that's not what this is about, is it? See also: Tornado Cash. Publishing code facilitating money laundering is fine (you'll find the code still on Github!); running said code to facilitate money laundering isn't.
Or to go with an even more extreme example: Writing code for a self-aiming and firing gun is speech [1], running said code on a gun in your driveway isn't.
The fact that we are still debating such basics of the First Amendment here is baffling. This is almost as trivial as the other well-known limitations in my view (shouting "Fire!" in a crowded theater etc.)
[1] At least at the moment, and as far as I know; I think we might see this type of speech being restricted in the same way that some facts about the construction of nuclear weapons are "innate state secrets".