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"Mixers" like Tornado Cash were crucial to various crypto hacks. | shapecharge/iStock

Over the past 24 hours, a video of a bearded man crooning lines of computer code with the aid of an auto-tuner has achieved minor virality online.

In addition to being amusing, the video gets to the crux of a momentous legal question hanging over the digital era: How does the First Amendment apply to computer code?

In the song, by musician Jonathan Mann, the lyrics are lines of code from Tornado Cash, a software tool called a mixer used to obscure the provenance of crypto tokens, which the Treasury Department sanctioned last week after it was used by North Korean hackers.

The refrain of Manns song This is illegal argues that the sanctions amount to a constitutionally dubious ban on discussing the Tornado Cash code itself.

Its not clear that the sanctions actually outlaw reciting code, melodically or otherwise. But they do include what appears to be the first-ever ban on interacting with blockchain addresses controlled by self-executing code (sanctions normally ban transactions with accounts controlled by specific people or entities). And as crypto advocates mull legal challenges to the sanctions, theyre homing in on First Amendment objections.

A showdown over the constitutionality of the sanctions would reopen decades-old questions about the legal status of code. In all likelihood, it would be just the first major skirmish in a broader fight over the First Amendments application to blockchain systems, one that crypto advocates have been anticipating for years.

In the early 90s, the Justice Department launched an investigation of a programmer who had released an encrypted messaging system, Pretty Good Privacy, under the logic that the software which had the potential to thwart U.S. spying capabilities counted as a munition, and was therefore subject to an export ban. The government eventually dropped the case, and in 1999, the 9th Circuit Court of Appeals ruled on First Amendment grounds in favor of another programmer, Daniel Bernstein, who challenged the application of export controls to cryptographic code.

This week, the Electronic Frontier Foundation, which represented Bernstein in the 90s, has expressed reservations about the Tornado Cash sanctions, arguing that the government doesnt have the power to ban the dissemination of computer code.

EFF did not immediately respond to a request to discuss its First Amendment reservations in more depth. But the crypto advocacy group Coin Center, which is considering a lawsuit over the sanctions, fleshed out its First Amendment objections in a lengthy analysis published Monday. The analysis argues that both the intent and the effect of the sanctions is to have a chilling effect on people exploring the very idea of cryptocurrency mixers.

While this affects only a niche class of blockchain applications, the question of how far First Amendment protections extend to transmissions of information within blockchain systems could have more profound implications. Bitcoin advocates have long made the case that both Bitcoins source code and Bitcoin transactions are protected by the First Amendment.

But what if theyre wrong, and the government can ban Bitcoin?

Many legal experts contend that speech protections for computer code are context-dependent, weakening or disappearing when someone executes the code with a computer.

People would argue that is more akin to action than it is to speech, First Amendment lawyer Bob Corn-Revere, a partner at Davis Wright Tremaine, told me.

But Corn-Revere, who served on Bernsteins legal team, said that since that case there has been a dearth of court decisions on the issue. As new software applications have raised new legal dilemmas, he said, new guidance about where and how computer code crosses from the realm of speech into the realm of action has yet to follow.

Thats the unanswered question, he said, in terms of where the courts go.

The Federal Reserve | AP Photo

Another unlikely crypto-world alliance is revealing just how unpredictable the fault lines around the new technology can be.

As POLITICOs Sam Sutton reported today for Pro subscribers, the crypto industry is flexing its burgeoning muscle on the Hill to convince lawmakers to stay out of the stablecoin business. The Federal Reserve has been exploring the concept of a digital dollar for some time now, and Rep. Jim Himes (D-Conn.), who released a Fed digital dollar proposal earlier this year, told Sam that not only do private stablecoin providers view a central bank digital currency, or CBDC, as a potential threat, banks dont like it either, viewing it as as a potential disrupter of their very profitable payment systems.

Its a notable alliance if only because, as you might have heard (frequently), the crypto and banking industries dont exactly agree with each other on much. Neither, presumably, did Sens. Kristen Gillibrand, a progressive standard-bearer, or Cynthia Lummis, from deep-red Wyoming, who sponsored this years biggest piece of crypto legislation. The next unlikely team-up around a crypto policy issue whether it ends up being around regulatory classification, international relations, or maybe even rural revitalization will officially make a trend, by old newsroom rules. Derek Robertson

Crypto may be down, but it looks like the meme coins are making a comeback.

The mostly-worthless joke crypto tokens most notably touted by Elon Musk in the case of Dogecoin, which hes boosted so consistently that its more or less ceased to be a joke have seen a sudden jump in their value as of late even amid the overall crypto slump, with Dogecoin spiking nearly 11 percent over the past week as of this writing, and Shiba Inu nearly 20 percent. (And yes, theyre nearly all still named after dogs, from Akita Inu to Zelda Inu.)

Of course, these are matters of degrees. The current value of Dogecoin hovers around eight-tenths of a cent. Shiba Inus is mere fractions of a penny that stretch to six digits. Trading these coins is, essentially, a game: Theres no promise of technological transformation, financial anonymity, or the creation of fortunes, just playing around with miniscule amounts of money on your phone.

Provided, as always, that one doesnt get too greedy, theyre probably one of the lower-stress, and certainly one of the lower-stakes, means of dipping ones toe into the crypto market but to be clear, as they say on the forums and subreddits that comprise the communities which are essentially these coins raison detre, this is not financial advice. Derek Robertson

Stay in touch with the whole team: Ben Schreckinger ([emailprotected]); Derek Robertson ([emailprotected]); Konstantin Kakaes ([emailprotected]); and Heidi Vogt ([emailprotected]). Follow us @DigitalFuture on Twitter.

Ben Schreckinger covers tech, finance and politics for POLITICO; he is an investor in cryptocurrency.

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Crypto pleads the First- POLITICO - POLITICO

Speaking after Ryan was Leslie Kendrick, the director of the Center for the First Amendment at UVA Law. Kendrick, who chaired the committee that crafted UVAs free speech statement, invited the new UVA students to, among other things, take a broad view on the meaning of free inquiry.

Its debating people you disagree with, but its also finding communities and organizations of like-minded people thats freedom of association, Kendrick said. Its getting involved with your fellow students on issues that seem to have nothing to do with free speech. Sharing a common goal with different people such as volunteering for public service or playing on a team exposes you to new perspectives, helps you appreciate the good in others, and builds trust and respect.

Even something as simple as spending time with your roommates builds trust, which makes having real conversations easier. And the more real conversations we can have, the better off well be.

The search for the truth, Kendrick said, is not an easy process. She challenged students to keep an open mind.

If you went to the gym and didnt break a sweat, you would know you werent getting your moneys worth, she said. And if you go through college without sometimes being uncomfortable with ideas, the same thing is true. We learn, and we progress, by facing challenging ideas, not suppressing them.

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President Ryan to the Class of 2026: Be Curious, Not Judgmental - UVA Today

By Vivek Ramaswamy and Jed Rubenfeld

Alex Berenson is back on Twitter after being banned for nearly a year over Covid-19 misinformation. Last week the former New York Times reporter settled his lawsuit against the social-media company, which admitted error and restored his account. The First Amendment does not apply to private companies like Twitter, Mr. Berenson wrote last week on Substack. But because the Biden administration brought pressure to bear on Twitter, he believes he has a case that his constitutional rights were violated. Hes right.

In January 2021 we argued on these pages that tech companies should be treated as state actors under existing legal doctrines when they censor constitutionally protected speech in response to governmental threats and inducements. The Biden administration appears to have taken our warning calls as a how-to guide for effectuating political censorship through the private sector. And its worse than we feared.

More here:
Twitter Becomes a Tool of Government Censorship - The Wall Street Journal

One of the first things we do when we sign up for a new website or platform online is to pick a name a username, screen name or handle sometimes unrelated to the name on our government ID. Part of the fun of creating an online persona can be picking a creative or funny pseudonym.

Its not all puns and games though. Anonymity can protect privacy and keep people like whistleblowers and activists safe; it can also shield bad behavior.

How can we balance the right to hide our identity with the potential harms of anonymity?

According to Jeff Kosseff, associate professor in the United States Naval Academy Cyber Science Department and author of The United States of Anonymous: How the First Amendment Protects Online Speech, this question is not new. Anonymous speech really is fundamental to the history of the United States.

In fact, many arguments for independence during the colonial era were made anonymously or pseudonymously with a pen name. So were arguments in support of the Constitution while it was being drafted.

In 1958, the Supreme Court protected the right to associate anonymously , saying the NAACP in Alabama could not be forced to reveal its membership lists. NAACP leaders at the time were regularly targeted with violence. Florida organizer Harry T. Moore and his wife Harriette were murdered in a bombing of their home on Christmas 1951 thought to be motivated by their anti-racist activism. Revealing the names of NAACP members would likely have endangered those members too.

Why do we need anonymity?

According to Kosseff, there are good reasons to protect anonymity. The ability to speak freely can help separate the content of the speech from the identity of the speaker. Sometimes, if people know who the speaker is, they might think differently about the message. Anonymity can lessen this bias.

More importantly, being anonymous can protect vulnerable people. People who need to have a voice but dont have the ability to associate their real name with that speech have a very good reason to want to speak anonymously, Kosseff says.

The civil rights movement provides several examples of how anonymity can help keep people safe, like the NAACP v. Alabama case. In a 1960 case, the Supreme Court protected the right of civil rights activists to call out via an anonymous pamphlet a supermarket that was discriminating against Black customers. Because of resistance to new civil rights laws, activists could have been in danger if they had been forced to reveal their identities.

This right, Kosseff says, has been reaffirmed by liberal and conservative justices . One example is a 1995 case overturning an Ohio law that required election publications to include authors names.

What about anonymity protecting bad actors?

The First Amendment protects anonymity (in most cases). It also protects the right to say unpopular or even abhorrent things (with some exceptions), anonymously or otherwise. You cant just use a subpoena to unmask someone whos been mean to you, Kosseff says. The courts have set a fairly high First Amendment standard for being able to subpoena identifying information of online posters.

Getting rid of anonymous speech online wouldnt prevent disagreeable speech, Kosseff says, because people say bad things using their real names, too. Some research shows that being able to use pseudonyms could have mixed or even positive impacts on online civility .

That said, different platforms have different policies. Some, like Facebook, technically require user profiles to use real names.

Online pseudonyms arent absolute or perfect, either. Criminals can and do get unmasked for speech that is truly beyond the protections of the First Amendment. In criminal cases or instances of speech that isnt protected , like true threats, it can be possible to pursue whos behind the screenname.

What does online anonymity look like around the world?

Kosseff says anonymity online is a spectrum. People can control what level of identifying information that they post online. So, to some extent, its up to everyone to decide if theyll provide no clues as to their identity at all or be fully transparent about who they are. Kosseff notes that its often possible for other users online to compile various facts youve shared about yourself to learn a lot about you even potentially your identity.

Theres also spectrum to how anonymity online is treated legally around the world. In Europe, privacy is a fundamental human right. Legal protections for anonymity there are more grounded in privacy than in free expression arguments. In authoritarian places, anonymity is difficult or prohibited.

Do we need a national privacy law?

One question Kosseff says we should ask is How do we better safeguard identifying information so that people can operate anonymously, and we can preserve the values that really underlie so much of our First Amendment precedent?

A national privacy law, he says, could place less burden on individual users to protect their data and provide much-needed guidance for users on how their data can be shared by companies.

First Five is a monthly column on First Amendment issues produced by The Freedom Forum, a nonpartisan nonprofit founded by Al Neuharth. First Five is an effort to inform citizens on the freedoms protected by the First Amendment.

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First Five: How the First Amendment protects anonymous speech online - INFORUM

OKLAHOMA CITY Two former top-ranking members of the Oklahoma Veterans Commission filed suit against Gov. Kevin Stitt on Friday, alleging that he violated their First Amendment right to support his political opponent.

Larry Wayne Van Schuyver, former Veterans Commission chairman and a retired Navy command master chief, and Paul D. Costilow, former vice chairman and a retired Army brigadier general who served in Vietnam, filed the suit in U.S. District Court for the Western District of Oklahoma.

They allege that Stitt removed them from the Oklahoma Veterans Commission for supporting Joel Kintsel in his bid to unseat the governor. They were notified of their removal two days after Stitt defeated Kintsel in the primary.

Kintsel is executive director of the Oklahoma Department of Veterans Affairs. The commission hires and fires the executive director.

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Stitt has replaced commission members who voted to give Kintsel a leave of absence to run for governor, Van Schuyver said.

Mark Hammons, an attorney for the plaintiffs, said Stitt violated the right of political affiliation.

Ironically, he has denied that right to the people who fought to make sure we would have that right in this country, Hammons said.

Retaliating against someone for exercising a First Amendment right is unlawful, he added.

The suit also says the plaintiffs did not support a plan by Stitt to privatize the states seven veterans centers.

Van Schuyver, who was wounded while deployed to Iraq, opposed the plan because he believes it would outsource management of veterans care, reduce the quality of service and increase the cost, according to the suit.

About half of the Oklahoma veterans in the homes would not qualify to continue living there under privatization, Van Schuyver claims, adding in an interview with the Tulsa World on Friday that he thinks Stitt probably wants to give operation of those homes to his cronies.

Hammons said another suit will be filed next week to challenge one of Stitts appointees.

Stitt appointed Robert W. Allen Jr. on Thursday to replace Van Schuyver and Scott B. Sweeney to replace Costilow.

Hammons claims that Stitt did not follow the law in appointing Allen. Hammons said the appointment had to come from among five names submitted by the Military Order of the Purple Heart, and Van Schuyver, who is commander of the organization, said he had never heard of Allen. The organization did not offer Allens name for consideration, Van Schuyver said.

He doesnt get to go out and pick a political buddy, Hammons said.

Van Schuyver said the end goal for him is to put the governor in his place and make it a fair process for appointing commissioners.

Despite the two new appointments, the nine-member Veterans Commission failed to reach a quorum to meet on Friday.

An agenda item for the slated meeting was a discussion about the roles of the commission and the secretary of military and veterans affairs.

Stitt recently appointed John Nash to that post, and Nash received Senate confirmation.

Kintsel said Nash is trying to exercise power over the agency, for which there is no legal authority.

We are starting to struggle mightily as to who is in what lane, Kintsel said. Under the law, the secretary plays no role operationally. And this seems to be difficult for this appointee to understand.

Stitts office did not respond to a request for comment.

Tulsa World Opinion podcast: Tulsa Public Schools targeted by state leaders

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Veterans sue Stitt for alleged violation of First Amendment rights - Tulsa World