Crypto policy group Coin Center has broadened its legal argument that writing and publishing cryptocurrency software is protected speech under the First Amendment, seeking clearer limits on developer liability for how their code is used.
In a report released Monday, executive director Peter Van Valkenburgh and director of research Lizandro Pieper contend that authoring and distributing crypto software is analogous to writing a book or publishing a recipe. They argue that the act of publishing and maintaining code should receive robust constitutional protection and that developers who publish code are speakers and inventors, not custodians, agents, or fiduciaries.
The paper warns that subjecting code publication to registration or licensing requirements would amount to a prior restraint on speech and represents a departure from the historical logic of financial regulation. According to Coin Center, imposing such regulatory prerequisites on expressive activity would be “almost always unconstitutional.”
The report arrives amid ongoing legal battles over whether developers can be held criminally responsible for others’ misuse of their software. High-profile convictions last year, including that of Tornado Cash developer Roman Storm, have heightened the stakes for legal protections around code publication.
Van Valkenburgh and Pieper say their goal is to give courts and regulators a framework to separate protected expressive activity from actionable professional conduct. They propose that a developer’s actions cross into regulatable conduct when the developer takes control of user funds, executes transactions on behalf of users, or otherwise makes decisions for users.
The authors criticize what they call a “functional code theory” adopted by some lower courts, which treats software as conduct rather than expression because it can produce real-world effects. They argue that established Supreme Court precedent requires treating code publication as speech, even if some lower courts have reached different conclusions.
To support their position, the paper cites Lowe v. SEC (1985), where the court held that a publisher who does not hold client assets or act for clients is protected by free speech and should not be treated as practicing a regulated profession.
Coin Center also cautions against using developers as easy targets merely because crypto can bypass traditional intermediaries. While self-custody and peer-to-peer protocols reduce the need for centralized authorities, governments typically regulate intermediaries that act on users’ behalf and require licensing for those roles.
The authors reject creating new legal doctrines or reclassifying developers as middlemen for administrative convenience. Instead, they urge the faithful application of settled First Amendment principles to software in the digital age, asserting that writing and publishing code is a form of expression that cannot be licensed into silence.
The report notes ongoing litigation: Storm was convicted last year on charges related to operating an unlicensed money-transmitting business, and his lawyers are preparing a motion to dismiss citing Cox Communications v. Sony Music Entertainment to argue a lack of intent. Co-founders of Samourai Wallet were also convicted and sentenced over similar charges.
Coin Center’s paper calls on courts and regulators to apply established First Amendment doctrine when distinguishing between protected code publication and conduct subject to financial regulation.