How Source Code Won Its First Amendment Fight—And Why Wall Street Still Doesn’t Get It

Free speech protections now extend to lines of code—a landmark shift that’s rattling both Silicon Valley and Washington. Here’s how developers turned keyboards into constitutional battlegrounds.

From Encryption to Expression

Courts finally acknowledged what coders knew for decades: algorithms are opinions written in machine language. When the 9th Circuit ruled that GitHub repos qualify as speech, it wasn’t just a win for programmers—it was a Molotov cocktail thrown at legacy regulation.

The Finance Angle (Because Of Course)

Meanwhile, hedge funds still treat open-source as ’free R&D’—mining repos for trading algos while lobbying against the very licenses that make innovation possible. The irony’s thicker than a Wall Street bonus.

This isn’t just about law anymore. Every commit message is now a potential Supreme Court brief—and the tech oligarchs are sweating.

On This Day: Code Is Speech

Twenty-six years ago today, Judge Marilyn Patel ruled that computer code should be considered speech and thus protected under the First Amendment, even if that code represented powerful encryption technology.

Bernstein had sued the US State Department and subsequently the Department of Commerce in what Judge Patel later described as “part political expression.”

As we touched on in a retrospective last week, the US government at the time classed cryptographic tools with a key size larger than 40 bits as weapons.

This meant anyone seeking to publish or otherwise make cryptography software available outside the US had to register as an arms dealer — including doctoral candidates studying mathematics at UC Berkeley, like Bernstein.

So, when Bernstein approached the State Department about publishing the source code, instructions and academic paper describing a new encryption method called Snuffle, authorities labeled the work a “munition” under the International Traffic in Arms Regulations. 

But the imposition of any licensing regime on code — the medium through which cryptographers express their ideas, thoughts and theories — was unconstitutional, in Bernstein’s view. The Electronic Frontier Foundation (EFF) then sponsored his lawsuit, in what was its second major case after the Steve Jackson Games in the early ‘90s.

Courts sided with Bernstein and the EFF in a landmark decision about a year later, ruling that the government must protect cryptographers’ freedom to code. It’s their language. 

The case paved the way for strong encryption to be readily applied to e-commerce and all manner of private enterprise, thanks in no small part to the forward-thinking Judge Patel. 

Patel wrote: “By utilizing source code, a cryptographer can express algorithmic ideas with precision and methodological rigor that is otherwise difficult to achieve… The need for precisely articulated hypotheses and formal empirical testing, of course, is not unique to the science of cryptography; it appears, however, that in this field, source code is the preferred means to these ends.”

It’s clear that without the Bernstein ruling, the development and release of Bitcoin might have been seriously slowed. After all, Satoshi (if they were in the US) would’ve needed to acquire a license to share Bitcoin source code, immediately doxxing them with the government. How convenient!

Luckily, Bernstein chose to fight.

• Blockworks Daily: Unpacking crypto and the markets.
• Empire: Crypto news and analysis to start your day.
• Forward Guidance: The intersection of crypto, macro and policy.
• 0xResearch: Alpha directly in your inbox.
• Lightspeed: All things Solana.
• The Drop: Apps, games, memes and more.
• Supply Shock: Bitcoin, bitcoin, bitcoin.