Coin Center Argues Software Code Is "Functional" Free Speech Under the First Amendment

Code as a Form of Expression

Peter Van Valkenburgh and Lysandro Pyper of the nonprofit organization Coin Center have released a comprehensive report equating software code with protected speech. They argue that the First Amendment to the U.S. Constitution should provide robust protections for developers who create and publish software.

"Big new Coin Center report on the First Amendment. Highly recommend reading if you, for example, happen to work at the SDNY and find yourself up at night wondering if the Supreme Court treats 'functional' software as less worthy of strict constitutional protections. Spoiler, it…" — Peter Van Valkenburgh (@valkenburgh), original post

The report's authors emphasized that developers are authors and inventors — not agents, custodians, or fiduciaries. Imposing prior registration or licensing requirements on them, they argued, ignores the historical logic of financial oversight and constitutes a classic prior restraint on activity that is fundamentally expressive. They characterized such requirements as unconstitutional.

Writing and publishing code, in their view, is no different from writing a book or publishing a recipe. The First Amendment's guarantee of free speech and expression effectively provides strict constitutional protection for developers whose work is limited to publishing and maintaining software.

Why This Matters

The legal status of software code remains one of the most consequential issues for the crypto industry. In 2025, several programmers were convicted based on how third parties used their software, intensifying the debate. The Coin Center report is directed squarely at courts and regulatory agencies, aiming to establish a clear boundary between code publication and professional financial activity.

Where Regulation Begins

Van Valkenburgh and Pyper outlined specific criteria for when a developer falls under regulatory oversight: when they control user assets, execute transactions on their behalf, or make decisions for them. In all other circumstances, software creators remain under the First Amendment's umbrella.

The Coin Center experts pointed to a systematic error in lower courts that conflate executing a program with making a statement. Some judges treat code more as conduct than speech, since it can be run to produce tangible outcomes. However, the report's authors insist that publishing code remains pure expression, a position they say is supported by U.S. Supreme Court precedent — despite mistakes by lower courts.

They cited the 1985 case of Lowe v. SEC as a key precedent. In that ruling, the Supreme Court held that a publisher who does not hold client funds or execute trades on their behalf is protected by free speech, is not a professional market participant, and does not fall under corresponding regulation.

Developers Are Not Scapegoats

Cryptocurrency protocols have eliminated certain traditional intermediaries. Self-custody and peer-to-peer transfers remove the need for a central authority to oversee transactions. Traditional financial institutions that act on behalf of users must obtain licenses and comply with government regulation, but developers of autonomous software do not perform such functions.

According to the report's authors, the difficulty of regulating new technologies does not justify turning programmers into intermediaries "for convenience." Blockchain-based projects do not require the invention of new legal doctrines or exceptions — they require faithful application of established First Amendment principles to a new technological context.

Writing and publishing code is speech that cannot be silenced by licensing in a free society, the Coin Center experts concluded.

The Roman Storm Case and Broader Context

The report arrives amid ongoing legal battles involving crypto developers. One of the most prominent cases involves Tornado Cash co-founder Roman Storm, who was found guilty of conspiracy to operate an unlicensed money transmitting business.

Numerous legal experts disagreed with the verdict. Samson Enzer, a partner at law firm CahillNXT, stated that the government lacked evidence proving Storm intentionally assisted criminals. Ethereum co-founder Vitalik Buterin also spoke in his defense. Storm's legal team is seeking to have the case dismissed, citing the Supreme Court's ruling in Cox Communications v. Sony Music Entertainment, and arguing their client had no intent to participate in the crimes alleged against him.

In August, Matthew Galeotti, head of the DOJ's criminal division, stated that the department would stop prosecuting DeFi application developers under the unlicensed money transmitting business statute. However, Van Valkenburgh noted that the official's statement carries no binding legal force — a reality that partly motivated the preparation of this new report with its constitutional arguments.