Third Circuit won’t revisit ruling upholding New Jersey ghost gun file restrictions

Court affirms computer code used to 3D-print firearms isn’t automatically protected speech

A federal appeals court has refused to reopen a February decision upholding New Jersey’s restrictions on digital files used to manufacture ghost guns, leaving intact a significant state victory in a legal fight over firearms regulation and whether computer code is protected speech.

In an order dated April 10 and opinion filed publicly April 20, the U.S. Court of Appeals for the Third Circuit denied a request for a rehearing filed by plaintiffs Defense Distributed and the Second Amendment Foundation.

The denial means the February ruling stands unless the plaintiffs persuade the U.S. Supreme Court to take the case.

The dispute began in July 2018 when New Jersey officials sent Defense Distributed a cease-and-desist letter demanding the Texas-based company stop distributing printable gun files to state residents. Officials argued the files could be used to produce illegal, untraceable firearms, including assault-style weapons banned under New Jersey law.

Defense Distributed initially complied, then adapted. The company experimented with mailing USB drives and SD cards before resuming online distribution through encrypted transfers, screening out New Jersey residents and foreign users. Lawsuits were filed in Texas and later New Jersey. An appellate panel in New Orleans determined that because the Third Circuit oversees the District of New Jersey, the Fifth Circuit lacked the authority to force the New Jersey court to send the case back to the Austin federal court.

New Jersey’s 2018 statute bars unlicensed people from using 3D printers to manufacture firearms, receivers, magazines, or gun components. It also prohibits distributing digital instructions or computer-aided design files to unlicensed state residents when those files could be used to program a 3D printer to produce weapons or parts.

Ghost guns, assembled from parts kits or printed from digital files, often lack serial numbers and can be difficult for law enforcement to trace.

Defense Distributed, which gained national attention after publishing files for the “Liberator,” a single-shot plastic pistol, argued that restricting the files amounted to censorship of protected speech. The Second Amendment Foundation joined the challenge. Some of its members wanted access to the restricted files. The plaintiffs compared the code to blueprints or technical manuals, claiming it was information, not machinery.

The Third Circuit rejected that framing and confronted what it called a “complicated question of first impression” for the court: when does computer code earn First Amendment protection?

The panel acknowledged that code occupies contested constitutional terrain. “Code is functional,” the opinion states, noting that it “powers products as varied as self-driving cars, internet search engines, facial recognition software, web browsers, word processing systems, and home appliances.” But the court said functionality alone doesn’t answer the constitutional question, because “some code is more than functional.”

Rather than adopt a blanket rule — either that all code is automatically protected speech or that none of it is — the panel held that “purely functional code with no expressive purpose, use, or intent is simply not covered by the First Amendment.” Whether a given piece of code qualifies as free expression, the court said, requires “a fact-based and context-specific analysis” that considers the technical nature of the files, how they’re used, who communicates through them, and what ideas, if any, they convey.

Applying that framework to the files at issue, the court found the plaintiffs’ complaint came up short. The opinion noted that while the complaint listed various file types, “it is unclear what information those files provide, how they are used, whether they are part of the 3D printing process, or what ideas they convey, if any.” The court said it had “no way to determine” from the face of the complaint whether certain files contained historical or comparative information — content the statute wouldn’t reach — or files directly used to manufacture weapons.

The court also dismissed a vagueness challenge to the statute’s “may be used” language, finding the law gave ordinary people adequate notice of what was prohibited. And it dismissed the Second Amendment claim because the plaintiffs hadn’t alleged a concrete injury. No plaintiff claimed they had actually tried and failed to manufacture a firearm because of the law.

The court opinion used an analogy. Just as “robbing a bank provides the most instructive way to teach someone how to rob a bank,” conduct that has the capacity to communicate something doesn’t automatically become protected speech. “A blanket protection because ‘code is speech,'” the court wrote, “is no more viable in cyberspace than it is in physical space.”

The fight over whether the case should be heard in Texas or New Jersey consumed years of litigation. In the rehearing petition, the plaintiffs argued the Third Circuit had created conflicts with Fifth Circuit precedent in Texas and mishandled venue, standing, and First Amendment questions. The full court was not persuaded.