DAOs and Constitutional Protections: What would Scalia think?

Justice Scalia


At a Nassau County Inn of Courts meeting, I was delighted to hear Bradford R. Clark, a professor at George Washington University School of Law, speak about his time clerking with Justice Antonin Scalia. Professor Bradford noted that Scalia had first served as the Assistant Attorney General (nominated by President Nixon) for the Office of Legal Counsel. The Office of Legal Counsel (OLC) is a division of the US Department of Justice responsible for providing legal advice to the President and executive branch agencies on constitutional and statutory issues, serving as the primary source of legal opinions for the executive branch. In essence, Scalia spent the better part of his career contemplating constitutional and statutory issues and engaging in profound discussions about the separation of powers.

This insight into Scalia’s background and interests prompted me to wonder how he would view Decentralized Autonomous Organizations (DAOs). While I did not have the opportunity to ask Professor Bradford this specific question, I did inquire about Scalia’s reading preferences, to which Bradford responded, “mainly the law.” Additionally, Scalia was known for not only reading his clerks’ briefs but also their sources. This meticulous approach earned him a reputation as a stickler for accuracy and consistency in legal representation. Furthermore, Professor Bradford described Scalia as “a very kind man” and the “best boss I ever had.” Reflecting on these insights and my admiration for Justice Scalia, I was inspired to explore his potential perspectives on DAOs, their constitutionality, and how he might approach related issues. Consequently, this essay delves into Justice Scalia’s possible views on the constitutionality of DAOs, including their eligibility for First Amendment protections, and cites relevant caselaw and decanting opinions from the Justice himself.

Originalism and Textualism: The Scalia Approach

To understand how Justice Scalia may have approached the issue of DAOs, it is crucial to consider his judicial philosophy, rooted in originalism and textualism. Originalism posits that the Constitution should be interpreted based on the original understanding of its provisions at the time of their adoption, while textualism emphasizes the plain meaning of statutory text over legislative intent or policy considerations. These two principles would likely guide Scalia’s analysis of the constitutional implications of DAOs.

Decanting Opinions and Caselaw

Although Justice Scalia did not address DAOs directly during his tenure, several of his opinions provide insight into his potential perspective on this issue. In particular, his decanting opinions in cases involving the application of constitutional principles to novel or changing circumstances can be instructive.

In District of Columbia v. Heller (2008), Scalia authored the majority opinion upholding an individual’s right to bear arms for self-defense, based on his originalist interpretation of the Second Amendment. Although the case involved a very different subject matter, it showcased Scalia’s willingness to apply originalist principles to contemporary issues, even when the outcome might challenge conventional wisdom.

A similar theme emerges in United States v. Jones (2012), where Scalia, writing for the majority, held that the government’s installation of a GPS device on a suspect’s vehicle constituted a search under the Fourth Amendment. Here, Scalia demonstrated his commitment to applying constitutional principles consistently, even in the face of rapid technological advancements.

These decanting opinions suggest that Scalia would likely have sought to apply the Constitution’s original understanding to DAOs, while also acknowledging the need to adapt to the unique challenges posed by these entities.

DAOs and the First Amendment

In considering whether DAOs should receive First Amendment protections, one must examine two primary aspects: freedom of speech and the right to assembly. While the Constitution does not explicitly mention DAOs, its language is sufficiently broad to encompass various forms of expression and association.

Freedom of Speech

Justice Scalia was a staunch advocate for free speech, often emphasizing the importance of open and robust debate in a democratic society. In cases like McIntyre v. Ohio Elections Commission (1995) and Citizens United v. Federal Election Commission (2010), Scalia defended the First Amendment rights of individuals and organizations, respectively.

Citizens United & DAO

Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), a landmark Supreme Court decision, held that the government could not restrict independent political expenditures by corporations, labor unions, and other associations, including nonprofit organizations. The Court found that these restrictions violated the First Amendment’s free speech clause, ruling that political spending was a form of protected speech. In essence, the Court emphasized that the identity of the speaker, whether a corporation or an individual, should not impact the protection afforded to political speech.

Applying Citizens United to Decentralized Autonomous Organizations (DAOs) suggests that these entities, like corporations and labor unions, may also engage in protected political speech through independent expenditures. As DAOs are organizations that use blockchain technology to facilitate communication and decision-making, their political spending could be deemed a form of expressive activity that merits First Amendment protection. Thus, it is plausible that a court would extend the principles of Citizens United to DAOs, recognizing their right to participate in the political process without undue restrictions on their speech.

McIntyre v. Ohio Elections Commission & DAOs

In McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995), the Supreme Court held that an Ohio statute prohibiting the distribution of anonymous campaign literature violated the First Amendment’s free speech protections. The Court reasoned that the right to remain anonymous while engaging in political speech is a crucial aspect of the freedom of speech, and that the government’s interest in preventing fraud and libel did not justify the statute’s broad prohibition.

Drawing a parallel between McIntyre and DAOs, one could argue that the anonymity inherent in blockchain technology, which allows DAO participants to engage in decision-making and communication without revealing their identities, falls within the scope of the First Amendment’s free speech protections. Although McIntyre dealt specifically with anonymous campaign literature, its principles could be extended to protect the anonymous political speech and expressive activities of DAO members. Thus, a court may well recognize that the unique features of DAOs, including their decentralized nature and reliance on anonymity, are protected aspects of the freedom of speech under the First Amendment.

In the context of DAOs, it is conceivable that Scalia would view these organizations as capable of engaging in expressive activities, particularly given their reliance on blockchain technology to facilitate communication and decision-making. Therefore, it is likely that Scalia would argue for extending First Amendment protections to DAOs with respect to their communicative functions.

Right to Assembly

The right to assembly is another fundamental First Amendment protection that could potentially apply to DAOs. Justice Scalia recognized the importance of this right in cases like NAACP v. Claiborne Hardware Co. (1982), where he emphasized the need for robust protections for expressive association.

In NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982), the United States Supreme Court held that a nonviolent, politically motivated boycott organized by the National Association for the Advancement of Colored People (NAACP) was protected by the First Amendment as a form of expressive association. The Court emphasized that the right to associate for the purpose of engaging in activities protected by the First Amendment, such as speech, assembly, and petition, is an indispensable part of the democratic process. Applying the principles of Claiborne Hardware to Decentralized Autonomous Organizations (DAOs), one could argue that these entities, which rely on blockchain technology to facilitate communication and decision-making among members, similarly engage in a form of expressive association. Therefore, as long as a DAO’s activities remain within the bounds of the law and do not involve violence or other illegal means, it is plausible that a court would extend the First Amendment protections recognized in Claiborne Hardware to cover the associational rights of DAOs and their members.

Given the inherently collective nature of DAOs, it is plausible that Scalia would view them as engaging in a form of assembly. The decentralized, collaborative nature of DAOs could be seen as an innovative approach to associating and working together, much like traditional organizations. Additionally, their reliance on blockchain technology to facilitate decision-making and resource allocation could be viewed as an extension of the associational rights protected by the First Amendment.

Limitations and Caveats

While Justice Scalia might have been open to extending First Amendment protections to DAOs, it is essential to acknowledge that his originalist and textualist approach could impose some limitations. For example, he might have insisted that DAOs demonstrate a clear connection to the Constitution’s original understanding of free speech and assembly, which could prove challenging given the novel and rapidly evolving nature of these organizations.

Furthermore, Scalia may have been inclined to impose certain restrictions on the scope of First Amendment protections for DAOs, particularly when it comes to issues of fraud, illegality, or potential harm to public interests. In cases like United States v. Alvarez (2012), where Scalia dissented from the majority opinion striking down the Stolen Valor Act, he demonstrated a willingness to balance free speech rights against the government’s interest in preserving the integrity of public discourse.


Drawing upon Justice Scalia’s extensive experience in contemplating constitutional and statutory issues, as well as his meticulous approach to legal analysis, it is reasonable to surmise that he might have been open to extending constitutional protections to Decentralized Autonomous Organizations. Specifically, he may have viewed DAOs as entities capable of engaging in expressive activities and assembly, thus meriting protection under the First Amendment.

However, Scalia’s perspective would likely be tempered by a commitment to the Constitution’s original understanding and an acknowledgement of the need to balance individual rights against the public interest. As such, his analysis would likely have been nuanced and attentive to the unique challenges posed by DAOs, reflecting both an appreciation for innovation and a deep commitment to the principles enshrined in the Constitution. In this exploration of how Justice Scalia might have approached the issue of DAOs, we honor his dedication to constitutional and statutory matters, his passion for the law, and his enduring impact on the American legal landscape.



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