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Feb 12 (Reuters) - A U.S. appeals court ruled on Thursday in favor of the New Jersey Attorney General's crackdown against a gun company over its distribution of computer code for 3D-printed guns, saying that the U.S. Constitution's First Amendment does not protect all forms of computer code as free speech.
The 3rd U.S. Circuit Court of Appeals affirmed a lower court’s dismissal of online gun business Defense Distributed's lawsuit against the attorney general’s office after agreeing that computer code that is purely functional — and not somehow expressive — would not fall under the First Amendment.
“To invoke the protections of the First Amendment, the proponent must show that the particular use of the code burdened by a regulation involves the expression or communication of ideas in a way that implicates the First Amendment,” Circuit Judge Cheryl Ann Krause, an appointee of Democratic former President Barack Obama, wrote for the unanimous three-judge panel.
But the gun company, which sells computer code to make guns with 3D printers, and the gun rights group, the Second Amendment Foundation provided too little information about the code to determine whether the First Amendment applies either way, the court said.
A 3D-printed plastic firearm, like what the code would create, is often called a "ghost gun" because it lacks a serial number and therefore can’t be traced by law enforcement.
In a statement, Acting New Jersey Attorney General Jennifer Davenport said she was grateful for the ruling.
Representatives for Defense Distributed did not immediately respond to requests for comment.
In a statement, Second Amendment Foundation Director of Legal Operations Bill Sack said the ruling “goes against prior courts which have ruled code is indeed speech, creating a new test that seems to have been prompted by this panel's disfavor of firearms."
“All is not lost, of course, as the panel did not decide that gun files are definitively not speech, just that Plaintiffs did not make the proper record in this case,” Sack said, noting the foundation is examining its legal options.
Defense Distributed, a Texas company, sued the attorney general’s office in 2018 after it received a cease and desist order threatening legal action unless it stopped making the code for ghost guns available to New Jersey residents. The lawsuit also sought to block a New Jersey law passed in 2018 that made it illegal to distribute code for a 3D-printed gun without a license.
After a lengthy battle over whether the case would proceed in Texas, where it was originally filed, or in New Jersey, it ended up before a New Jersey federal judge. Despite a request from the 5th U.S. Circuit Court of Appeals that the case be returned to Texas, the judge kept it in New Jersey.
Ultimately, Defense Distributed’s lawsuit was dismissed after a judge rejected the First Amendment claims, as well as the company’s other claims under the U.S. Constitution’s due process clause and Second Amendment protections for firearms.
In Thursday's ruling, the 3rd Circuit said it was joining other circuits that have held that the First Amendment provides protections to computer code. But it won’t extend to all code, and an analysis will be necessary to determine whether code is sufficiently expressive to be protected, the court said.
Without details on what the files contain and how they work, the court can’t determine if the First Amendment applies, it said. The lower court gave the company a chance to add more detail with an amended complaint, but the company declined, so the case was properly dismissed, the appeals court said.
Senior Circuit Judges Anthony Scirica, an appointee of Republican former President Ronald Reagan, and Marjorie Rendell, who was appointed by Democratic former President Bill Clinton, also sat on the panel.
The case is Defense Distributed et al. v. New Jersey Attorney General, case number 23-3058 in the 3rd U.S. Circuit Court of Appeals.
For New Jersey: Angela Cai of the New Jersey Attorney General's Office
For Defense Distributed: Joshua Blackman
Feb 12 (Reuters) - A U.S. appeals court ruled on Thursday in favor of the New Jersey Attorney General's crackdown against a gun company over its distribution of computer code for 3D-printed guns, saying that the U.S. Constitution's First Amendment does not protect all forms of computer code as free speech.
The 3rd U.S. Circuit Court of Appeals affirmed a lower court’s dismissal of online gun business Defense Distributed's lawsuit against the attorney general’s office after agreeing that computer code that is purely functional — and not somehow expressive — would not fall under the First Amendment.
“To invoke the protections of the First Amendment, the proponent must show that the particular use of the code burdened by a regulation involves the expression or communication of ideas in a way that implicates the First Amendment,” Circuit Judge Cheryl Ann Krause, an appointee of Democratic former President Barack Obama, wrote for the unanimous three-judge panel.
But the gun company, which sells computer code to make guns with 3D printers, and the gun rights group, the Second Amendment Foundation provided too little information about the code to determine whether the First Amendment applies either way, the court said.
A 3D-printed plastic firearm, like what the code would create, is often called a "ghost gun" because it lacks a serial number and therefore can’t be traced by law enforcement.
In a statement, Acting New Jersey Attorney General Jennifer Davenport said she was grateful for the ruling.
Representatives for Defense Distributed did not immediately respond to requests for comment.
In a statement, Second Amendment Foundation Director of Legal Operations Bill Sack said the ruling “goes against prior courts which have ruled code is indeed speech, creating a new test that seems to have been prompted by this panel's disfavor of firearms."
“All is not lost, of course, as the panel did not decide that gun files are definitively not speech, just that Plaintiffs did not make the proper record in this case,” Sack said, noting the foundation is examining its legal options.
Defense Distributed, a Texas company, sued the attorney general’s office in 2018 after it received a cease and desist order threatening legal action unless it stopped making the code for ghost guns available to New Jersey residents. The lawsuit also sought to block a New Jersey law passed in 2018 that made it illegal to distribute code for a 3D-printed gun without a license.
After a lengthy battle over whether the case would proceed in Texas, where it was originally filed, or in New Jersey, it ended up before a New Jersey federal judge. Despite a request from the 5th U.S. Circuit Court of Appeals that the case be returned to Texas, the judge kept it in New Jersey.
Ultimately, Defense Distributed’s lawsuit was dismissed after a judge rejected the First Amendment claims, as well as the company’s other claims under the U.S. Constitution’s due process clause and Second Amendment protections for firearms.
In Thursday's ruling, the 3rd Circuit said it was joining other circuits that have held that the First Amendment provides protections to computer code. But it won’t extend to all code, and an analysis will be necessary to determine whether code is sufficiently expressive to be protected, the court said.
Without details on what the files contain and how they work, the court can’t determine if the First Amendment applies, it said. The lower court gave the company a chance to add more detail with an amended complaint, but the company declined, so the case was properly dismissed, the appeals court said.
Senior Circuit Judges Anthony Scirica, an appointee of Republican former President Ronald Reagan, and Marjorie Rendell, who was appointed by Democratic former President Bill Clinton, also sat on the panel.
The case is Defense Distributed et al. v. New Jersey Attorney General, case number 23-3058 in the 3rd U.S. Circuit Court of Appeals.
For New Jersey: Angela Cai of the New Jersey Attorney General's Office
For Defense Distributed: Joshua Blackman
