[dcolkitt]

> If I rig up my car to explode

Mechanical devices are not protected as speech.

> If I hire a hitman.. I am guilty of murder.

SCOTUS has already carefully defined this in the Brandenburg test. Speech is only not protected when it results in direct, imminent lawless action. And SCOTUS has consistently ruled that the boundary for the test is extremely concrete. (Contrary to popular opinion yelling fire in a crowded theatre is actually protected by Brandenburg under the First Amendment.)

Sending a text message to a hitman telling him to "wack Tony at midnight" fails the Brandenburg test because it leads to imminent lawless action. But you can literally publicly advocate for an ideology to overthrow the United States government and murder millions of people, and that's Constitutionally protected because there's no imminent lawless action.

Writing and publishing open source software is Constitutionally protected, because the simple act of publishing software does not lead to imminent lawless action. Even if it's reasonable to assume that the software will likely be adopted for illegal purposes. Again this isn't hypothetical, SCOTUS has consistently ruled that the government cannot restrict the ability to publish instructions on how to make pipe bombs or 3D printed guns.

[esotericimpl]

The person you're responding to wasn't making a "free speech argument". And I don't see how this is in way way a free speech issue.

He's saying just because you set up an ATM in the middle of a city and say, and then say feel free to wash your illegal cash here to do some money laundering.

The act of it being on blockchain and "decentralized" wont make a difference, anyone offering said "launder ATM" could be convicted of a crime.

[dcolkitt]

An ATM machine is not protected as speech. Courts have consistently ruled that software is protected speech. So, yes blockchains do make a substantial difference because they divorce the act of writing software (protected by the 1st Amendment) from the act of operating the business around that software.

SCOTUS has consistently required an extremely high bar to regulating speech, so it's simply not enough to say "well we regulate this other non-speech thing, what's the difference".

[vorpalhex]

An ATM isn't a dog either.

Executing code isn't free speech. The code may be. The execution not so much.

[dcolkitt]

Contract devs don't execute the code. They simply broadcast the it to the Ethereum network. Deploying a contract is conceptually no different than publishing source code to GitHub. It's actually the Ethereum node operators that execute the code. (Hence why the contract devs can't stop a running smart contract.)

If you want to make the argument that the persons executing the code are liable, than it should be the Ethereum network nodes, not the developer who deployed the smart contract. As it stands, it's pretty unlikely that the Treasury department has the political capital or the operational reach to shut down Ethereum. And that's why blockchain is different.

[vorpalhex]

Given that the treasury department has frozen Tornado, and generally made the whole project persona non grata, I believe your theory here is fairly thoroughly debunked.

Trying to find a loophole in the law by trickery is why we use human courts - the judge can still find you guilty and punish the living crap out of you for abetting money laundering.

[Ferret7446]

> Given that the treasury department has frozen Tornado

They haven't though. Tornado Cash is still happily running. If you post your address here, some kind soul might even send you some ETH via Tornado Cash right now. They have asked regulated financial institutions to not receive ETH that came directly from Tornado Cash. That's it; that's all that they can do. While that puts a damper on people converting directly between ETH and USD at such institutions, it does bugger all for people conducting small/informal transactions

[dcolkitt]

There hasn't been a court case yet. Not even a judicial hearing. The article we're commenting on is about how there's a very good chance that courts will disagree. This SCOTUS has repeatedly shown a willingness to restrict executive overreach in the Biden administration.

[everfree]

In the case of Tornado Cash, the person who wrote and published the code isn't the person executing it.