Tornado Cash developers don’t possess an unrestricted “trump card” of freedom of speech.

Debates between crypto industry advocates and regulators are intensifying as they discuss whether the code of a protocol should be considered free speech and what implications this has for liability. The crypto industry has faced accusations of enabling illicit activities such as money laundering and terrorism financing, leading to arrests and court cases. Recent examples include the arrests of developers working on Tornado Cash and Samurai Wallet, as well as the planned enforcement action by the US Securities and Exchange Commission against decentralized exchange Uniswap. These cases have raised questions about the liability of developers for the actions of others using their code, with some arguing that it is an attack on free speech. However, there is disagreement within the crypto community about whether code should be considered free speech, and if so, whether developers are abusing this definition to avoid liability. In 1993, the Electronic Frontier Foundation successfully argued in the Bernstein vs. Department of Justice case that software source code is protected speech under the First Amendment of the US Constitution. Some believe that code should be treated as a form of expression and protected as such, while others argue that it should be regulated like any other technology. The intention of the developer also plays a role in determining whether code is protected speech. If the code is created with the intention of breaking the law and making money from it, it cannot be considered free speech. However, if the code has both positive and negative use cases, the creator should not be held responsible for the misuse of their creation. Regulators’ actions against crypto developers have had a chilling effect on open-source projects, leading to concerns about stifling innovation. It is important for laws around speech to be narrowly tailored to avoid infringing upon other rights and interests. The removal of code, such as in the case of Tornado Cash, can have negative consequences for academic exploration and investor confidence. The ongoing cases involving Tornado Cash, Samurai Wallet, and Uniswap will test the boundaries of freedom of speech in relation to code. Ultimately, the courts will evaluate whether regulators’ actions are justified and meet the requirements of the First Amendment.