Fortunately the 1st Amendment is still mostly respected, at least relative to some of the others.
[Edit] Now, monetizing such software is an interesting problem.
Ripple/OpenCoin may have found one model: include a cryptocurrency that's used as credits in the system, and claim a large portion for yourself, which you can later sell. The problem is if they open source the software too early someone could easily create a new network with the currency allocated to themselves.
[Edit] Perhaps that could be solved with a new open source license that forbids forking the network.