report<\/a> released Monday by Coin Center, Executive Director Peter Van Valkenburgh and Director of Research Lizandro Pieper said writing and sharing crypto code is no different from publishing a book or a recipe, placing it squarely within First Amendment protections.<\/p>\nTheir paper arrives at a time when developers are facing growing legal pressure over how their tools are used, including high-profile criminal cases tied to privacy software and decentralized applications.<\/p>\n
When does code become conduct?<\/h1>\n
Coin Center\u2019s report sets out to draw a clear line between protected speech and actions that regulators can oversee, arguing that not all developer activity should be treated the same.<\/p>\n
\u201cLower court confusion over the distinction between conduct and speech naturally found in software publishing has fueled the development of what might be called a functional code theory of diminished First Amendment protection,\u201d the authors wrote.<\/p>\n
<\/p>\n
Courts have at times taken the view that software behaves like conduct because it can produce real-world outcomes. Coin Center pushed back on that idea.<\/p>\n
\u201cSome courts have suggested that because software can be executed to produce real-world effects, it resembles conduct rather than speech.\u201d<\/p>\n
\u201cWe argue that such activities are pure speech and that the Supreme Court\u2019s existing jurisprudence insists on this interpretation even if some lower courts have gone astray.\u201d<\/p>\n
The group said a developer moves into regulatable territory only when taking direct control over user funds, executing transactions on behalf of users, or making decisions for them. Publishing and maintaining code alone, it argued, should not trigger licensing or compliance obligations.<\/p>\n
\u201cThey are speakers and inventors, not agents, custodians, or fiduciaries. Extending pre-registration or licensing requirements to this speech activity drops the historical logic of financial oversight and imposes a classic prior restraint on activities that are primarily speech and expression\u2014which is almost always unconstitutional.\u201d<\/p>\n
Legal pressure builds around crypto developers<\/h2>\n
Coin Center pointed to recent prosecutions as a sign that courts and regulators are still grappling with how to apply existing law to decentralized technology.<\/p>\n
Roman Storm, a developer linked to the Tornado Cash protocol, was convicted last year on charges tied to operating an unlicensed money-transmitting business. His legal team has since sought dismissal, citing Supreme Court precedent, including Cox Communications Inc. v. Sony Music Entertainment, to argue he lacked intent to participate in criminal activity.<\/p>\n
Developers behind Samourai Wallet, a privacy-focused Bitcoin wallet, were also convicted on similar charges and received prison sentences ranging from four to five years.<\/p>\n
Those cases have raised concerns across the industry that writing open-source code could expose developers to liability based on how third parties use it.<\/p>\n
First Amendment framework takes center stage<\/h2>\n
Coin Center grounded its argument in long-standing legal precedent, including the 1985 Supreme Court decision in Lowe v. SEC, which held that publishing information without managing client assets or acting on their behalf falls under protected speech rather than regulated financial activity.<\/p>\n
Traditional financial rules were built around intermediaries that hold or move funds for users. Crypto systems often remove those roles, allowing peer-to-peer transfers and self-custody without centralized control.<\/p>\n
Van Valkenburgh and Pieper argued that applying intermediary-style regulation to developers for \u201cadministrative convenience\u201d risks stretching the law beyond its intended scope.<\/p>\n
\u201cCrypto software does not necessitate the invention of new legal doctrines or novel carveouts. It requires the faithful application of settled First Amendment principles to a new technological context.\u201d<\/p>\n
\u201cIn the age of computers, where software is the primary means for expressing ideas and organizing economic life, those principles matter more, not less. Writing and publishing code is speech. And in a free society, speech cannot be licensed into silence.\u201d<\/p>\n
<\/p>\n<\/p><\/div>\n","protected":false},"excerpt":{"rendered":"
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