Is Bitcoin Protected as Speech Under the 1st Amendment? Experts Answer

There is a concept that exists in the crypto space that effectively states: Bitcoin is code, code is speech and speech is protected under United States law.

Neil Richards, one of the world's leading experts in privacy and information law, as well as freedom of expression, argued in 2016 that: "Code = Speech is a fallacy because it would needlessly treat writing the code for a malicious virus as equivalent to writing an editorial in the New York Times," adding that it is simply wrong.

The argument is that because code is speech, and because Bitcoin is code, Bitcoin is speech.

In short, the fact that Bitcoin is made up of ones and zeros does not on its own imbue it with the expressive character necessary for it to be protected as free speech.

Leaving IP protections for code and their First Amendment implications aside, the really fascinating question is whether anonymous payments should be protected under free speech doctrine.

Robert Corn-Revere, partner at Davis Wright Tremaine, LLP.The syllogism is tempting: code is speech; speech is protected by the U.S. Constitution; therefore, blockchain is protected by the First Amendment.

The first cases to test the "Code as speech" theory had to do with cryptographic source code, the function of which is to enable confidential or anonymous speech - which itself is something the First Amendment protects.

Commercial speech is absolutely protected under the First Amendment, and I am happy to assume that code being put out by crypto developers and entrepreneurs could fit within the scope of that rule.

In very general terms, commercial speech that is false, misleading, or relates to illegal activity, is not really protected by the First Amendment because there is no legitimate interest in providing listeners with that kind of information.

While software can be expressive, and is sometimes protected as speech, it can also function, so it is properly subject to significantly more regulation than true speech.