Defense Distributed v. Attorney General New Jersey
Split Score
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Case Summary
Disposition
Affirmed
The Third Circuit affirmed dismissal of Defense Distributed and the Second Amendment Foundation’s challenge to New Jersey’s ban on distributing 3-D-printed gun files. The court held the plaintiffs lacked standing on the Second Amendment claim, the statute was not unconstitutionally vague, and the complaint failed to plead facts showing the disputed computer code is expressive speech protected by the First Amendment.
Circuit Split Identified
Legal Issue
Whether computer source/object code is automatically protected speech under the First Amendment or only enjoys coverage when used for expressive communication.
Circuit Positions
All source code is presumptively protected speech under the First Amendment (blanket protection).
Computer code is protected when used to communicate between programmers but not when functioning as machine commands or user-directed utilities; intermediate scrutiny applies.
Encryption source code can be expressive and protected; object code status undecided—protection depends on expressive context.
Code is covered only when its particular use is expressive; purely functional code receives no First-Amendment coverage.
Conflict Summary
Circuits disagree on the threshold test for First-Amendment coverage of computer code: the Sixth Circuit treats all source code as protected speech; the Second and Ninth Circuits recognize protection only in certain contexts; the Third Circuit in this opinion adopts an even narrower, use-based approach that excludes purely functional code.