"the proposed rule, as drafted, would not withstand constitutional scrutiny," as "the proposed definition directly describes the publication of speech as a necessary and sufficient condition for the registration requirement. Merely “making available” a “communications protocol” can, by the SEC’s own admission, trigger an obligation to register. A communications protocol is commonly understood as a set of rules. “Making available” a set of rules is an awkward linguistic construction that must, at the very least, include publishing and speaking, which are core First Amendment activities."
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