Is Bitcoin First Amendment protected as Michael Saylor claims?

Michael Saylor recently asserted, borrowing an idea from a paper by NYDIG’s Ross Stevens, that bitcoin should be considered speech and thus be protected by the First Amendment of the US Constitution.

Stevens’ argument hinges on a few foundational assumptions. First, he posits that Bitcoin “is fundamentally about the creation and transmission of information, which qualifies as speech.” Second, he claims that “bitcoin activity represents, at the very least, protected expressive conduct.”

He further asserts that this purportedly protected free speech is a means of civil participation, which constitutes “expressive association safeguarded by the First Amendment.”

The paper concludes by stating, “Bitcoin qualifies as free speech under the First Amendment, meaning that regulating bitcoin entails significant constitutional considerations.”

Nonetheless, while the paper aims to advocate for constitutional protection, it has not been submitted in any court case and will not prompt any US judge to evaluate its merits.

In fact, no one is questioning the legality of engaging with the Bitcoin network: mining blocks, running a full node, or broadcasting BTC transactions. All of these actions are currently legal in the US.

Even though the paper references a few minor instances of restrictions on bitcoin mining activities, like temporary bans on new license issuances in New York, it does not assert that any state prohibits the fundamental activities of operating a node or participating in mining.

A Debate with No Opponent

The paper expands upon its initial assertion of First Amendment protection with several unrelated claims. It describes Bitcoin as “a collective of individuals united by shared hard-coded principles such as individual liberty, anti-censorship, and anti-debasement,” and argues that “the use and mining of bitcoin qualify as protected expressive conduct since these activities are regarded as a protest against governmental control and the devaluation of fiat currencies.”

These additions stand apart from the central argument for First Amendment protection. In reality, millions of people operate bitcoin nodes for reasons such as investing, developing video games, speculating on art, honing skills training, or pursuing various other objectives unrelated to Stevens’ lofty ideals.

More critically, the paper’s reasoning suffers from a Definist fallacy. While some computer code (written characters) can be a manifestation of speech, not all programming is classified as Constitutionally protected free speech.

For instance, a number of criminals have communicated via text messages that constitute crimes, such as giving instructions to a hitman, coercing a hostage for money, or authorizing illegal acts.

To put it simply, not all speech is protected. Entering a bank and demanding cash from a teller while threatening violence is, indeed, speech, but it also constitutes a crime. The flaw in the definist fallacy lies in the fact that merely highlighting similarities between two concepts does not equate them.

Other Legal Issues Yet to be Resolved

Consider more contentious issues related to bitcoin that remain legally unaddressed. For example, the legality of operating a Bitcoin Lightning Node on a personal computer has prompted extensive debate.

Furthermore, numerous lawsuits involve the transmission of bitcoin from US residents to sanctioned individuals or unlawful recipients. Such core actions of engaging with the bitcoin network—broadcasting and relaying BTC transactions—are not necessarily settled matters of law. Funding sanctioned terrorists and criminal organizations remains illegal, even when conducted through bitcoin.

Read more: Sanctions, censorship, and ESG: Is Bitcoin still fungible?

Many individuals have argued that their altcoins, like bitcoin, are also computer code and thus protected as speech. Richard Heart, for instance, championed this argument for his initial token offering, HEX, as well as for his second and third offerings, Pulse and PulseX.

However, such arguments did not prevent the SEC from pursuing action against Heart for allegedly profiting from those fundraising efforts.

 How many altcoin offerings did the Founding Fathers intend to include under the protection of free speech?

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