Michael Saylor, swiping an idea from a paper written by NYDIG’s Ross Stevens, claimed recently that bitcoin is speech and therefore protected by the First Amendment of the US Constitution.
The argument put forth by Stevens is a basic series of assumptions. First, he argues that Bitcoin “consists entirely of the creation and transmission of information, which is speech.” Second, that “bitcoin activity is at minimum protected expressive conduct.”
Finally, according to Stevens, this allegedly protected free speech activity is a form of civil participation, which is “expressive association separately safeguarded by the First Amendment.”
The paper concludes, “Bitcoin is free speech protected by the First Amendment and therefore regulating bitcoin has clear constitutional implications.”
However, while the paper is supposedly an argument for constitutional protection, it isn’t filed in any court proceeding and won’t have any US judge issue a ruling on its merits.
Indeed, no one is challenging the constitutionality of operating the Bitcoin network: mining blocks, operating a full node, or broadcasting BTC transactions. All of these activities are currently legal in the US.
Although the paper cites a few small examples of limitations on bitcoin mining-related activities, such as intermittent bans on new license issuances in New York, it doesn’t claim that any state bans the basic activities of operating a node or miner.
Arguing with no one
The paper goes beyond this initial claim of First Amendment protection with a number of unrelated claims. These include that Bitcoin is “a collection of individuals that share bitcoin’s hard-coded principles of individual liberty, anti-censorship, and anti-debasement,” and that “using and mining bitcoin also constitutes protected expressive conduct because those activities are intended and widely understood to be a protest against government control and debasement of fiat currencies.”
These are curious additions to the core argument of First Amendment protection. Indeed, millions of people operate a bitcoin node in order to invest, create video games, speculate on artwork, practice skills training, or pursue other goals entirely unrelated to Stevens’ high ideals.
Perhaps more importantly, the paper argues from assumption in a Definist fallacy. Although some computer code (typed characters) is a form of speaking, not all computer code is classed as Constitutionally protected free speech.
For example, many criminals have typed text messages that were crimes: instructing a hit man, coercing a hostage to remit money, or authorizing a crime.
Put simply, not all speech is free. Walking into a bank, for example, and telling a cashier to hand over money under threat of violence is speech but it’s also a crime. The problem with the definist fallacy is that simply emphasizing the similarities between two terms does not actually equate them.
Other unresolved legal matters
Consider more contentious issues involving bitcoin that aren’t resolved matters of law, for example. That even a Bitcoin Lightning Node is legal to operate on a home computer has been the subject of considerable debate.
Also, the many lawsuits involving the transmission of bitcoin from US residents to sanctioned entities or other illegal recipients. Such basic actions of operating the bitcoin network — broadcasting and relaying a BTC transaction — are not necessarily a resolved matter of law. It remains illegal to fund sanctioned terrorists and criminal organizations, even with bitcoin.
Read more: Sanctions, censorship, and ESG: Is Bitcoin still fungible?
Many people have claimed that their altcoin is, like bitcoin, computer code and therefore protected speech. Richard Heart, for example, repeated this argument of free speech not only for his first token offering, HEX, but also for his second and third token offerings, Pulse and PulseX.
Those arguments didn’t stop the SEC from pursuing Heart for personally enriching himself with those fundraises.
How many altcoin offerings did the Founding Fathers intend to protect as supposedly free speech?
