By Andrew Balthazor*

Blockchain software, like Bitcoin, are computer programs that allow users to transmit information to one another within the confines of a distributed-ledger transaction model. Some blockchain advocates argue that software systems like Bitcoin are shielded by the First Amendment and exempt from regulation under several theories:

  • Freedom of speech: “[a blockchain] runs on code, code is information, and information is speech.”[1]
  • Freedom of the press: blockchain technologies are capable of transmitting text and images and thus are a “publishing platform.”[2]
  • Freedom of association: groups use blockchain technologies to “organize in creative ways” and are a means of association.[3]
  • Freedom of speech redux: Bitcoin is money and money is speech.[4]

These arguments are flawed in two respects: (1) they all require an expansion of the First Amendment to the point that it would swallow the Constitution, which no court would permit; and (2) even First-Amendment protected conduct is subject to regulation.

Under the above theories, any transaction with a country’s currency would be subject to First Amendment protections, an outcome that is plainly untenable and unsupported by Supreme Court precedent. That one could write a political message on a dollar bill and “publish” at the corner store when buying some milk does not transform all dollar bills into protected speech or all paper currency into a “publishing platform.” An organization’s need for money does not transform all financial transactions into a protected “means of association.” Activity is not protected merely because it involves “information” or “money”; doing so belies “any lawyerly sense.”[5]

All conduct can be distilled down to information, yet it cannot be that all conduct is First-Amendment protected. Violently beating someone with a baseball bat communicates information.[6] Communicating how to clandestinely grow “magic mushrooms” involves expression.[7] Everything from an innocuous purchase on Amazon to financial support of terrorist groups involves the exchange of information. Merely labelling activity “information” is not dispositive of the issue of First Amendment protection. As the Court stated in Spence v. Washington:

It is . . .  necessary to determine whether . . . activity was sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments, for as the Court noted in United States v. O’Brien, “[w]e cannot accept the view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea.”[8]

To do otherwise would expose a “limitless variety of conduct” to First Amendment protections resulting in an “Ayn Rand-inspired fantasy world seemingly sprung from the imagination of a bedazzled college sophomore.”[9]

Even extending First Amendment protection to blockchain-based activity would not create a regulation-free zone. Constitutionally protected speech may be regulated under varying levels of scrutiny;[10] in clashes between various rights and interests, the First Amendment is not the One Amendment to Rule Them All.[11] We regulate everything from internet service providers to “telephone companies, railroads, and postal services, without raising any First Amendment issue.”[12] Bitcoin is no exception.

We are in the Information Age. Everything is information. But there must be some division between protected “expressive” information and unprotected “non-expressive” information lest we dilute the values intended to be protected by the First Amendment.[13] If we attempt to protect everything, we may end up protecting nothing.[14]

* J.D. Candidate 2019, Florida International University (FIU) College of Law; B.S. (Computer Science), United States Military Academy, 1999; Law Clerk focusing on litigation and cryptocurrencies, Holland & Knight LLP. I am grateful to Professor Thomas E. Baker of FIU College of Law and Josias Dewey, Holland & Knight’s blockchain expert, for discussing with me the First Amendment and its intersection with Bitcoin.

[1] Kyle Langvardt, The Doctrinal Toll of “Information As Speech”, 47 Loy. U. Chi. L.J. 761, 800 (2016); see also Jim Epstein, Bitcoin Is Free Speech: Why Jamie Dimon Was Wrong and Governments Can Never ‘Close It Down’, Reason (Oct. 5, 2017), https://reason.com/reasontv/2017/10/05/bitcoin-jamie-dimon-jp-morgancrypto; Marcia Hofmann, Comments to the New York State Department of Financial Services on BitLicense, Elec. Freedom Found., 12–13 (Oct. 21, 2014), https://www.eff.org/document/bitlicense-comments-eff-internet-archive-and-reddit.

[2] Hofmann, supra note 1, at 14–16; see also Zach Schlein, Attorneys Assess Impact of Third DCA Ruling on Bitcoin Trading in South Florida, Daily Bus. Rev., Feb. 6, 2019, at A1 (quoting Carlton Fields attorney Justin Wales that Bitcoin is a “communicative network” capable of nonfinancial messages and should thus be unregulatable); Beautyon, Why America Can’t Regulate Bitcoin, Hacker Noon (Mar. 15, 2018), https://hackernoon.com/why-america-cant-regulate-bitcoin-8c77cee8d794.

[3] Hofmann, supra note 1, at 13–14; see also Danny Bradbury, Bitcoin is Crucial for the Future of Free Speech, Say Experts, CoinDesk (Aug. 6, 2013), https://www.coindesk.com/bitcoin-is-crucial-for-the-future-of-free-speech-say-experts (discussing how some people got into Bitcoin to donate to Wikileaks without fear of the donation being traced).

[4] Alice Huang, Reaching Within Silk Road: The Need for A New Subpoena Power That Targets Illegal Bitcoin Transactions, 56 B.C. L. Rev. 2093, 2116 (2015) (discussing whether virtual currency transactions are protected based on Citizens United v. Federal Election Commission, 558 U.S. 310 (2010)); see also Alex Lemieux, To Regulate Or Not To Regulate; That Is The Cryptocurrency Question, The Republican Standard (July 21, 2018), https://therepublicanstandard.com/to-regulate-or-not-to-regulate-that-is-the-cryptocurrency-question/ (“[P]eople may ask that since money – especially in elections – is noted as a freedom of speech or expression, should cryptocurrency remain unregulated?”).

[5] See Langvardt, supra note 1, at 790 (describing such arguments as “bare logic untempered by any lawyerly sense”).

[6] Naming a baseball bat “Lucille” may strengthen the communicative element of such a beating. See, e.g., The Walking Dead: Last Day on Earth (AMC television broadcast Apr. 3, 2016).

[7] Ross Ulbricht was one of the founders of Silk Road, an online black market fueled by Bitcoin. United States v. Ulbricht, 79 F. Supp. 3d 466, 472–73 (S.D.N.Y. 2015). Ulbricht argued that the First Amendment should exclude an electronic manual found on his laptop entitled “The Construction & Operation of Clandestine Drug Laboratories.” Id. at 490. The court was unpersuaded. Id. (“The First Amendment is not a proper basis for this objection: acts of speech may always be used as probative of participation in criminal activity.”).

[8] 418 U.S. 405, 409 (1974) (quoting 391 U.S. 367, 376 (1968)).

[9] Langvardt, supra note 1, at 791.

[10] See Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 641–42 (1994); see also Red Lion Broad. Co. v. FCC, 395 U.S. 367, 389–90 (1969).

[11] See Tara Smith, The Free Speech Vernacular: Conceptual Confusions in the Way We Speak About Speech, 22 Tex. Rev. L. & Pol. 57, 65–67 (2017) (discussing that the right of free speech is absolute but not boundless).

[12] U.S. Telecom Ass’n v. FCC, 825 F.3d 674, 740 (D.C. Cir. 2016) (collecting Supreme Court cases as examples of acceptable regulation of entire industries).

[13] See Langvardt, supra note 1, at 815 (“I suspect that the line between ‘expressive’ and ‘non-expressive’ information streams will eventually be worked out, and that when that occurs, it will take the form of a cultural intuition rather than a doctrine made by lawyers.”).

[14] Sun Tzu, The Art of War Ch. 6 ¶ 17 (Lionel Giles trans., 1910), https://suntzusaid.com/book/6/17. (“If he sends reinforcements everywhere, he will everywhere be weak.”).