In layman’s terms: The U.S. Court of Appeals for the Third Circuit, which has jurisdiction over New Jersey, concluded that the litigants in this case didn’t provide enough information to determine if the computer code was protected speech under the First Amendment and dismissed the case.
In its first decision under its new conservatively-leaning composition, the U.S. Court of Appeals for the Third Circuit grappled with the intersections of free speech and Second Amendment rights.
The three-judge panel issued a 39-page decision on February 12 in the New Jersey-based case known as Defense Distributed v. New Jersey, a case on appeal from the U.S. District Court for the District of New Jersey. The case was filed jointly by Defense Distributed and Second Amendment Foundation to challenge New Jersey statutes that “infringe the individual right to make and acquire arms.”
The court acknowledged the unusual juxtaposition between two of our most cherished civil liberties in its opening statement:
When it comes to the regulation of firearms, the Second Amendment is the usual battleground. But in this case, where the regulation relates to 3D-printing of ghost guns, the fray shifts into First Amendment territory and treads fresh ground on the constitutional protections afforded to computer code.
Also see: California Seeks to Ban Protected Speech – Computer Code – Related to 3D Printing of Firearms
The case has a long procedural history, but stems from a July 2018 cease-and-desist letter issued by the New Jersey Attorney General (then Gurbir Grewal) to Defense Distributed, a Texas-based company that produces and distributes “digital firearms information” that can be used to manufacture firearms components using a 3D printer.
New Jersey’s letter threatened legal action if Defense Distributed did not “cease and desist from publishing printable-gun computer files for use by New Jersey residents.”
(New Jersey has a history of threatening or taking legal action against states it claims violate its gun control laws, as it did in July of 2025, with a suit against another Texas company which the state alleges advertised and sold bump stocks in New Jersey.)
Following its cease and desist letter, the New Jersey legislature passed a bill outlawing the 3D printing of all firearms components, and distributions of files (software code) to anyone in New Jersey.
Defense Distributed changed course by employing screening procedures and encrypted transmissions. It then brought its own suit against New Jersey on July 29, 2018.
As mentioned above, there is a long procedural history to this case that began in Texas and was shifted to New Jersey, but the court’s decision is perhaps the most significant outcome in this case.
Although brought as a Second Amendment complaint, the appeals court observed that the complaint had a “fatal” omission in that it didn’t include any allegations that its members were unable to exercise their Second Amendment rights. In this, it agreed with the district court.
The court also dismissed the challenge that the New Jersey statue is void for vagueness under the Due Process Clause.
But the court does take up the First Amendment challenge which it characterizes as “…a complicated question of first impression for our court – whether regulations of computer code trigger constitutional scrutiny under the First Amendment.”
Although there is some body of legislative precedent that addresses computer code in the context of free speech, it isn’t exhaustive, and here the court looks to create a framework for analysis writing, “we hold that the determination of whether code enjoys First Amendment protection requires a fact-based and context-specific analysis.”
The court goes on to describe that such an analysis is based upon the nature of the code, how it is used in context, who is communicating through it and the intended recipient, as well as for what purpose it operates.
In this framework the court weighs the concept of “expressiveness” and concludes that only some code is protected under the concept of free speech, writing, “But while it is certainly true that some computer code falls under the purview of the First Amendment, purely functional code with no actual or intended expressive use does not.”
The final outcome?
“With this framework as our guide, we agree with the District Court that Appellants’ operative complaint lacks the information necessary to determine whether the coded computer files Defense Distributed seeks to distribute are expressive or functional and, consequently, whether it implicates the First Amendment,” concludes the court.
The appeals court affirmed the district court’s dismissal of the complaint with prejudice (meaning the same claim may not be brought again).
The court also notes that there was an opportunity to amend the lawsuit to address this gray area: “Indeed, the District Court provided Appellants with an opportunity to amend their complaint and include additional allegations that would enable the Court to assess whether they have plausibly alleged that the code at issue is covered by the First Amendment. Appellants declined to do so, and the District Court therefore correctly dismissed their complaint with prejudice.”
