Code deemed 'functional' free speech under First Amendment — Coin Center

Coin Center, a crypto policy and advocacy think‑tank, published a report on April 20, 2026 arguing that writing and publishing software code qualifies as protected speech under the U.S. First Amendment. The group contends that the expressive aspects of code should receive strict constitutional protection and that routine publication or maintenance of open‑source software cannot be criminalized solely because it is executable.

The report, authored by Executive Director Peter Van Valkenburgh and Director of Research Lizandro Pieper, frames code publication as analogous to publishing a book or a recipe and urges courts and regulators to distinguish expressive publishing from conduct that legitimately warrants regulation. Coin Center argues developers who merely publish code are “speakers and inventors,” whereas regulation is appropriate when developers take custodial roles, execute transactions on behalf of users, or otherwise assume fiduciary responsibilities.

The paper arrives amid heightened concern following last year’s high‑profile prosecutions of crypto developers. In a notable case, Tornado Cash co‑founder Roman Storm was convicted on August 6, 2025 of operating an unlicensed money‑transmitting business, a verdict that many in the developer community say raises the prospect of criminal liability for code publication. Prosecutors and the U.S. Attorney’s Office have presented such cases as necessary for combating money‑laundering and sanctions evasion, while defenders warn of chilling effects on software development.

Legal scholars note the dispute hinges on longstanding First Amendment doctrine and evolving technology: courts have sometimes treated code as expressive speech and in other instances have characterized certain conduct as regulable. Coin Center cites precedents and argues that imposing pre‑registration or licensing regimes on publishers would constitute an unconstitutional prior restraint absent a compelling state interest. The debate has implications for regulatory policy, enforcement priorities and investor confidence in decentralized finance.

Market observers and legal experts expect prolonged litigation and potential legislative responses as stakeholders seek clarity. Some lawmakers and industry groups are already discussing statutory protections for developers, but outcomes depend on how courts balance free‑speech principles with law‑enforcement and financial‑integrity concerns. The Coin Center report positions itself to influence that balance by supplying a legal framework courts might adopt to separate protected expression from actionable conduct.