Commissioner Hester Peirce reminded attendees that computer code has long been recognized as a form of expression protected by the First Amendment. Efforts to regulate “what smart contracts do” risk becoming unconstitutional content-based restraints, chilling innovation and forcing developers to self-censor.
Peirce argued that targeting developers based solely on others’ misuse of their open-source libraries would mirror prior overreach in telecom and software regulation — a lesson from Bernstein v. DOJ, where courts upheld code as protected speech.
