MILESFORTIS

Karn v. U.S. State Department found that computer code is protected speech. But this judge decided that, because cad files can communicate with the machines directly, they are not protected…really.

Ahhhh. So does that mean ASCII files are no longer free speech after some judge realizes they can be sent directly to an inkjet printer?

These old, activist judges will learn quickly that you can’t stop the signal.

Federal Judge Rules Gun CAD Files are Not Protected Speech

A federal judge in New Jersey ruled that computer code that lets someone produce firearms is not protected speech under the First Amendment.

In the case, Defense Distributed v. Platkin, Federal District Court Judge Michael A. Shipp dismissed the lawsuit that Defense Distributed and the Second Amendment Foundation ( SAF) brought against New Jersey’s law banning the sharing of gun computer-aided design files (CAD). Even before the law was passed, New Jersey issued a cease-and-desist letter to the company in early 2018, demanding it stop publishing firearms information that New Jersey residents could access. Defense Distributed has been posting CAD files on its Def Cad website that allow users to print firearms using 3D printers. New Jersey claimed publishing these files broke the state’s public nuisance and negligence laws.

Defense Distributed claimed First Amendment protections against the cease-and-desist correspondence. The company claimed that New Jersey’s action was unconstitutional but would try to prevent citizens from New Jersey from downloading the files while weighing its options. New Jersey decided this action was insufficient and seemed to want the company wiped out.

The state would then send a letter to DreamHost, one of Defense Distributed’s Internet security providers, claiming that the company violated DreamHost’s acceptable use policy (AUP) because Defense Distributed was violating New Jersey law. New Jersey would also contact the company’s other Internet security provider, Cloudflare, with the same claim. The state seemed to be trying to wipe the Texas-based company off the map.

Later that year, New Jersey passed Senate Bill 2465, a law banning the sharing of CAD gun files with non-federal firearms licensees. In the signing ceremony, New Jersey Governor Phil Murphy stated that the bill would give the state “stronger tools” to stop Defense Distributed, their Director Cody Wilson, and his followers from sharing files allowing citizens to print “ghost guns.” The governor stated he wanted to stop the “next Cody Wilson” and warned that the state would come after any company “contemplating making a printable gun.”

Defense Distributed and the Second Amendment Foundation (SAF) would team up and sue the state over what it saw as an unconstitutional law. The plaintiffs claimed that computer code was free speech and that the state can not infringe on protected speech. This case isn’t the first time Defense Distributed fought for free speech. The company sued the State Department (DoS)when the government agency claimed that the company “might” be violating the International Traffic in Arms Regulations (ITAR). Defense Distributed backed down the DoS, and the agency dropped its objections.

Defense Distributed would bring six actions against New Jersey. The first was the company’s claim that the Garden State violated the First Amendment by censoring computer code.

Although case law states that computer code is protected speech (Karn v. U.S. Dep’t of State), Judge Shipp reasoned that not all computer code is protected speech. He claimed that since CAD files communicate with a machine directly with little human interference, it is functional and nonexpressive. He reasons that because it is nonexpressive, CAD files are not speech. Since he believes it is not “speech,” he states that the referenced computer code has no First Amendment protection.

The second argument brought by the plaintiffs is that the New Jersey law violates protections afforded under the Second Amendment. The judge believes the guns produced by a printer are a protected “arm,” but he rejected the claim that the code itself is an “arm.” Because of his determination, he believes there is no Second Amendment protection for CAD files.

The plaintiffs have two separate Fourteenth Amendment claims. The first of these claims is selective enforcement because New Jersey took action against Cody Wilson but not others. The judge dismissed this claim because he stated that the plaintiffs did not provide enough evidence and believed New Jersey would go after others in the 3D printing community.

The second Fourteenth Amendment claim is a violation of the Due Process clause. Defense Distributed called out the vagueness of the law, the law’s overbreadth, and the deprivation of property. The judge first dismissed the overbreadth theory because the plaintiff’s argument relied on computer code being protected speech, and the judge already rejected that idea.

The Barak Obama-appointed judge would then tackle the deprivation of property claim. Defense Distributed argued that it had been deprived “of a license issued by the Secretary of State pursuant to federal law.” The judge ruled that this claim failed since the State Department dropped out of the case after dropping its ITAR claim.

The final Fourteenth Amendment claim is that of “vagueness.” The plaintiffs argued that the law is unconstitutionally vague because it “fails to provide a person of ordinary intelligence fair notice of what is prohibited or is so standardless that it authorizes or encourages seriously discriminatory enforcement.” The law states that it is a crime to disseminate a CAD file that “may” be used to print a firearm. Defense Distributed legal team claims the word “may” in the law is too vague.

The judge didn’t find the law to be vague. He ruled that a person of reasonable intelligence would know that any CAD file that produces a firearm is illegal in New Jersey. He also claims that the vagueness argument fails legal muster since there is no risk of discriminatory enforcement of the statute.

The plaintiffs’ next argument is that the law fails the Dormant Commerce Clause. They claim that New Jersey “directly regulates interstate commerce by projecting New Jersey law into other states” and “discriminate[s] against interstate commerce” without serving a compelling governmental interest. The judge ruled against this claim because New Jersey was not trying to build up a domestic business, and he found the law didn’t burden other states’ industries.

The final claim made by the plaintiffs was that of tortious interference. The judge dismissed the claim, claiming that the state has immunity from being sued by private parties under the Eleventh Amendment.

Although Defense Distributed was disappointed in the ruling, the company expected the result. The judge has a reputation for being a judicial advocate for left-leaning ideas and causes, such as taking anti-gun stances.

“I expected no other outcome from this reliably partisan judge,” Wilson told AmmoLand News. “We will now appeal to the Third Circuit, who will honor the request of the Fifth Circuit that this case finally will proceed in Texas.”

The Fifth Circuit Court of Appeals wanted to consolidate multiple cases brought by the plaintiffs, but Judge Shipp refused to release the case. If the Third Circuit Court of Appeals does let the case transfer to Texas, the New Jersey law could be in trouble. But only time will tell if the Third Circuit will honor the request.