Crypto industry attorneys have argued in litigation and before regulatory agencies that the First Amendment immunizes their line of business from ordinary market regulation. On the merits, these arguments range from weak to frivolous. But they nevertheless create value for the crypto industry in two ways. First, they help to drive a predatory marketing strategy that attracts retail investors with appeals to individual liberty and resistance to “financial censorship.” Second, they tee up arguments that financial regulators’ jurisdiction should be interpreted narrowly under the “canon of constitutional avoidance” and the “major questions doctrine.” Overall, crypto’s First Amendment opportunism interferes with public efforts to protect investors, collect taxes, and fight financial crime—and ultimately, it debases the First Amendment itself. At every opportunity, agencies and courts should debunk these arguments in terms that are clear enough for the industry’s target audiences to understand.
