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"The First Amendment doesn’t actually give us the right to speak freely."

— Neil Richards, Washington University Law

RETURN code == speech;

The 1996 case Bernstein v. Department of Justice established that code is speech.

US District Judge Marilyn Hall Patel ruled that Daniel Bernstein’s cryptography deserved First Amendment protection because "this court can find no meaningful difference between computer language…and German or French."

Seems clear enough! 

The free speech scholars at Columbia University, however, categorize the Bernstein decision as a "mixed outcome" because "the court stressed that not all software is expression."

Subsequent legal cases have not unmixed the issue. 

In 2016, Apple’s lawyers argued that because the First Amendment protects not only the right to speak but also the right not to speak, Apple could not be compelled to write the code required to bypass an iPhone encryption, as the FBI had demanded.

"The First Amendment prohibits the government from compelling Apple to make code," they argued before a Ninth Circuit appeals court in Apple v FBI. 

The FBI dropped its case against Apple when it found an Israeli company that could write the code to hack into iPhones instead, so the court did not rule on Apple’s line of reasoning that it could not be compelled to write code because code is speech.

Had it accepted that argument, Apple v. FBI might have broadened the scope of the First Amendment protections for code established in Bernstein. 

At least one legal scholar was glad that it didn’t.

Neil Richards, who was otherwise supportive of Apple’s case, thought it would set a dangerous precedent if the ruling was decided in Apple’s favor on First Amendment grounds.

"Code = Speech is a fallacy," he wrote at the time, "because it would needlessly treat writing the code for a malicious virus as equivalent to writing an editorial in the New York Times."

Asking whether or not code is speech "makes little sense," he explained.

The question we should ask instead is "whether a government regulation of an activity threatens the traditional values of free expression."

What types of activities deserve protection, and what constitutes "expression," remains up for debate.

In 2016, the 5th Circuit Court of Appeals found that computer files instructing a 3D printer on how to print a gun is not expression, and therefore not protected by the First Amendment (or the Second Amendment, for that matter). 

But in a "landmark" legal settlement in 2018, the US government conceded that instructions to print a 3D gun are protected as speech, stating that tutorials for firearms were approved "for public release…in any form."

That seemed like an unambiguous win for the "code is speech" point of view: If instructions to make a gun are covered by the First Amendment, surely something like, say, instructions for the peer-to-peer exchange of cryptocurrency would be too, right?

Maybe not. 

In denying Roman Storm’s motion to dismiss the money laundering charges the US government brought against him, here’s what Southern District of New York Judge Katherine Failla had to say about code as speech last week: "It is true that computer coding can be expressive conduct protected by the First Amendment. But when a programmer is using a code to direct a computer to perform various functions, that code is not protected speech."

With that, Judge Failla not only sent the US government’s prosecution of Tornado Cash to trial by jury, but also sent the idea that code is speech back to trial, as well.

Judge Failla’s emphatic statement notwithstanding, Storm’s code may still end up being deemed speech.

In Universal City Studios v. Corley, a Second Circuit judge opined that "the fact that a program has the capacity to direct the functioning of a computer does not mean that it lacks the additional capacity to convey information, and it is the conveying of information that renders instructions ‘speech’ for purposes of the First Amendment." 

This might be the best context for understanding the First Amendment aspect of the Tornado Cash case: If Roman Storm’s code is deemed "expressive," it will probably be protected as speech. And if it’s deemed "functional," it probably won’t be. 

For example, the pseudo-code in the subject line (RETURN code == speech;) has the same First Amendment protections as its plain-text meaning (is code speech?) — but that’s because it would be deemed "expressive."

In US v. Storm and Semenov, the government will probably argue that the code written to create Tornado Cash should be deemed "functional" and that the First Amendment therefore should not apply. 

The distinction is important far beyond crypto because "assuming that code is free speech and only free speech, and ignoring its functional purpose," as two legal scholars argue, "will at best tangle the law up in knots."

(On the plus side, tangling the law up in knots might count as a real-world use case for crypto!)

By that logic, Neil Richards’s thinking on Apple may apply to Tornado Cash, as well: Even if you’re rooting for Storm to win (as all of crypto is), it might be dangerous for him to win on First Amendment grounds.

Because if words and symbols in a computer program are deemed to be no different than words and symbols on a page, malware and ransomware might effectively be legalized, for example.

And the stakes may be about to get a lot higher than that.

If I write code to instruct an autonomous AI agent to rob a bank and then it does, am I protected by the First Amendment? 

(Because good luck arresting the AI bot.) 

The 2016 case against Apple was dropped because the FBI found someone other than Apple who could hack an iPhone for them.

Writing code into immutable smart contracts, as Roman Storm did, raises the stakes — Tornado Cash is still operating, and will continue to operate, no matter what the jury decides. 

That raises the First Amendment legal stakes, as well.

Eagle-eyed readers may have noticed that none of the precedents cited here are Supreme Court cases — the highest court in the land has yet to weigh in on whether code is speech.

Crypto might someday force it to decide.

— Byron Gilliam

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