Crypto advocacy group Coin Center has reinforced its position that software code qualifies as protected speech under the First Amendment, as debate continues over whether developers can be held responsible for how their creations are used.
In a report published Monday, Executive Director Peter Van Valkenburgh and Director of Research Lizandro Pieper argued that writing and publishing crypto software is comparable to authoring a book or sharing a recipe.
They contended that the First Amendment’s protections for free speech and expression extend strongly to developers who simply create and maintain code. According to the report, such individuals act as speakers and inventors—not as agents, custodians or fiduciaries—and imposing licensing or pre-registration requirements on this activity would amount to an unconstitutional prior restraint on speech.
Crypto software developers have increasingly pushed for clearer legal protections to avoid criminal liability tied to how their code is ultimately used. The issue gained prominence last year with several high-profile cases, including the prosecution of Roman Storm, a developer of Tornado Cash.
Regulation applies when developers directly engage with users
According to Peter Van Valkenburgh and Lizandro Pieper, the report aims to help courts and regulators draw a clearer line between protected software publication and conduct that may fall under financial regulation.
They argue that developers step into regulatable territory when they directly control user funds, execute transactions on users’ behalf, or make decisions for them.
The authors also noted that confusion in lower courts over the boundary between speech and conduct in software development has contributed to what they describe as a “functional code” theory—one that risks weakening First Amendment protections by treating certain code-related activities as less protected forms of expression.
“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 pointed to the Lowe v. SEC ruling, in which the Supreme Court of the United States determined that a publisher who neither holds client assets nor acts on a client’s behalf is engaged in protected speech—not a regulated professional activity.
Developers shouldn’t be treated as intermediaries
The authors noted that crypto software often removes traditional middlemen, with self-custody and peer-to-peer transactions reducing the need for centralized entities to hold or transfer funds. By contrast, conventional financial institutions that act on behalf of users are typically subject to licensing and oversight.
Peter Van Valkenburgh and Lizandro Pieper argued that while adapting regulation to emerging technologies is complex, labeling developers as intermediaries for “administrative convenience” is misguided.
They concluded that crypto software does not require entirely new legal doctrines, but rather a consistent application of established First Amendment principles to modern technological contexts.
“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.”
Roman Storm was convicted last year on charges of conspiracy to operate an unlicensed money-transmitting business. His legal team has since pursued a motion to dismiss, citing the Cox Communications Inc. v. Sony Music Entertainment to argue that he lacked intent to participate in the alleged criminal activity.
Meanwhile, the co-founders of Samourai Wallet were also convicted on similar charges and received prison sentences ranging from four to five years.
