First Amendment Shield: Crypto Developers Argue Code Publishing Is Protected Speech, Not Regulated Conduct

Crypto software developers face mounting legal uncertainty, and a powerful crypto lobby is fighting back with constitutional arguments. Following last year's high-profile convictions—including Tornado Cash developer Roman Storm—the industry is drawing a hard line: writing and publishing code is free speech, plain and simple.

Coin Center's Executive Director Peter Van Valkenburgh and Director of Research Lizandro Pieper released a detailed analysis Monday arguing that crypto software publishing deserves the same First Amendment protections as books or recipes. Their core argument is straightforward but legally significant: developers who only publish and maintain software are "speakers and inventors, not agents, custodians, or fiduciaries."

The pair contend that requiring pre-registration or licensing for software publication constitutes an unconstitutional "prior restraint" on speech and expression. "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—which is almost always unconstitutional," they argued.

Where Regulation Actually Applies

Here's where Coin Center draws the critical line: developers enter regulatable conduct territory only when they directly control user assets, execute transactions on users' behalf, or make financial decisions for them. This distinction matters enormously in crypto market intelligence and trading circles because it creates a potential legal framework for distinguishing protected activity from regulated conduct.

The report points to confusion in lower courts over whether software's real-world execution capabilities classify it as "conduct" rather than "speech." Coin Center pushes back hard: Supreme Court precedent—particularly the 1985 Lowe v. SEC decision—supports treating software publication as pure speech protection, regardless of its functional effects. In Lowe, the Court found that publishers not holding client assets or taking client actions received full free speech protection and weren't subject to professional licensing requirements.

The Self-Custody Revolution Complicates Everything

Crypto's core innovation—self-custody and peer-to-peer transactions eliminating traditional financial intermediaries—actually strengthens Coin Center's argument. Traditional financial institutions acting as intermediaries get regulated and licensed precisely because they control user funds. But if code enables users to maintain custody themselves, developers aren't functioning as those regulated intermediaries at all.

Van Valkenburgh and Pieper emphasize this isn't about avoiding necessary regulation or inventing novel legal doctrines. "Crypto 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," they wrote.

The stakes are enormous. Storm faces charges of conspiracy to operate an unlicensed money-transmitting business; his legal team is working on dismissal motions citing the Cox Communications v. Sony Music precedent to argue lack of criminal intent. The Samourai Wallet co-founders faced identical charges and received sentences of four to five years.

"In 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," they concluded.