Code is ‘functional’ free speech under the First Amendment: Coin Center

“Lower 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,” they said.

Source: Neeraj Agrawal

“Some courts have suggested that because software can be executed to produce real-world effects, it resembles conduct rather than speech,” they added.

“We argue that such activities are pure speech and that the Supreme Court’s existing jurisprudence insists on this interpretation even if some lower courts have gone astray.”

They cited the 1985 case of Lowe v. SEC, in which the Supreme Court found that a publisher that does not hold assets on behalf of a client or take action on the client's behalf is protected by free speech and does not count as practicing a regulated profession.

Crypto developers can’t be used as scapegoats

In some cases, crypto software has eliminated certain traditional middlemen, with self-custody and peer-to-peer transactions removing the need for a central authority to send funds or hold them.

Traditionally, financial institutions acting on a user's behalf as intermediaries are regulated by governments and required to hold licenses.

Related: Coin Center urges Senate not to axe crypto developer protection bill

Van Valkenburgh and Pieper said that while it is challenging to build regulatory frameworks around new technology, declaring software developers to be middlemen for “administrative convenience” is not the answer either.

“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 added.

“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.”

Storm was convicted last year on charges of conspiracy to operate an unlicensed money-transmitting business, but his lawyers have been working on a motion to dismiss using the Supreme Court case, Cox Communications Inc. v. Sony Music Entertainment, to argue he had no intent to participate in the crimes of which he is accused

The co-founders of privacy-focused Bitcoin wallet Samourai Wallet were also found guilty on the same charge and were sentenced to between four and five years in prison.

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