Software code is a form of free speech that should be protected by the First Amendment of the U.S. Constitution, according to Peter Van Valkenburgh and Lizandro Piper from Coin Center.
Big new Coin Center report on the First Amendment.
— Peter Van Valkenburgh (@valkenburgh) April 20, 2026
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… https://t.co/wxlD7SXTEx
“Developers are authors and inventors, not agents, custodians, or trustees. Requiring them to pre-register or obtain licenses ignores the historical logic of financial oversight and imposes a classic prior restraint on an activity that is essentially self-expression. This is unconstitutional,” they stated.
Experts argue that writing and publishing code is no different from writing a book or publishing a recipe.
The First Amendment, which guarantees freedom of speech and self-expression, essentially provides strict constitutional protection for developers who merely publish and maintain software.
When a Developer Becomes an Intermediary
Van Valkenburgh and Piper noted that their report aims to help courts and regulatory bodies distinguish between the publication of code and the professional activities of software creators.
A developer falls under regulation when they control user assets, conduct transactions on their behalf, or make decisions for them.
“Lower courts confuse execution and expression, which undermines the First Amendment protection of code,” the Coin Center experts remarked.
They added that some judges view code as closer to execution than expression because it can be executed to achieve real results.
However, experts insist that such activities are pure self-expression. They argue that this is supported by U.S. Supreme Court practice, despite errors by lower courts.
Van Valkenburgh and Piper referenced the 1985 case of Lowe v. SEC, where the Supreme Court ruled that a publisher who does not hold client funds or conduct transactions on their behalf enjoys freedom of speech protection, is not considered a professional market participant, and is not subject to relevant regulation.
Programmers Should Not Be Scapegoats
Cryptocurrency protocols have eliminated some traditional intermediaries. With self-custody and P2P transfers, there is no need for a central authority to oversee transactions.
Traditional financial structures acting on behalf of users are subject to government regulation and must obtain licenses.
According to Van Valkenburgh and Piper, the complexity of regulating new technologies does not justify attempts to make software developers intermediaries “for convenience.”
“Blockchain-based projects do not require the invention of new legal doctrines or exceptions. They require good-faith application of established First Amendment principles to a new technological context,” they added.
In an age where software is the primary means of expressing ideas and organizing economic life, “these principles are more important than ever.” Writing and publishing code is speech that cannot be silenced by licensing in a free society, the Coin Center experts concluded.
Context
Crypto developers have been seeking legal protection from criminal prosecution for the code they write for several years. In 2025, a court convicted several programmers based on how third parties used their software.
A notable example is the trial of Roman Storm, one of the founders of the cryptocurrency mixer Tornado Cash. Authorities found him guilty of conspiracy to operate an unlicensed money transfer business.
Many experts disagreed with the verdict. Samson Enzer, a partner at the law firm CahillNXT, stated that the government lacks evidence to prove that Storm intentionally aided criminals. Ethereum co-founder Vitalik Buterin also spoke out in his defense.
The defense is seeking to dismiss the case, citing the Supreme Court's ruling in Cox Communications v. Sony Music Entertainment. The lawyers argue that Storm had no intention of participating in the alleged crimes.
In August, U.S. Department of Justice Criminal Division Chief Matthew Galeotti stated that the department would cease prosecuting DeFi application developers under the unlicensed money transfer business statute.
However, Van Valkenburgh noted that the official's words do not carry mandatory legal weight.