the US could also pull the functional harm argument in the same way the government uses it to regulate some protected speech (like the whole debacle over DeCSS)
Even if the free speech argument prevails, the US GOV can still use sanctions to prevent the public clouds from hosting any foreign open weight models, and prohibit US based sites from distributing the weights. It'll remain functionally legal for individuals (or at least, unenforceable) but in practice, you'll need to pirate the weights they won't be available from any US based site or provider and would be illegal for businesses to use, even if its a gray area, the liability will mean businesses won't touch them.
You could argue encryption is non-expressive operational artifacts too. Any sources on where it's being challenged with this argument?
Because with free speech, you can just create entirely new languages, so who's to say my language isn't weight values?
Also curious how a business would not have grounds to sue on a sanction like this Businesses (in America) have constitutional protections too.
There's also Texas v. Johnson (the flag burning case), the court rules that for something to be protected speech it must contain an intent to convey a specific message, and a great likelihood the message will be understood.
The core decision, if ever tested in court, will come down to "Are model weights an expression of human ideas? Or are they purely a mechanical tool?"