DEFENSE DISTRIBUTED V PLATKIN

Defense Distributed and the Second Amendment Foundation brought a lawsuit against New Jersey Attorney General Matthew J. Platkin, claiming that a law prohibiting the distribution of digital instructions for 3D-printed firearms violated their constitutional rights. The Attorney General responded by filing a motion to dismiss the case, arguing that the plaintiffs had failed to provide enough evidence to support their claims. Ultimately, the district court agreed with the Attorney General and granted the motion to dismiss, stating that the plaintiffs had not established standing, failed to make a selective enforcement claim, and that the law was not vague or in violation of the dormant Commerce Clause. Additionally, the court ruled that the law was not preempted by federal regulations.

DIGITAL FIREARMS INFORMATION

Defense Distributed (DD), founded by Cody Wilson, is a Texas-based corporation dedicated to providing digital firearms information to the American public, with the goal of upholding the Second Amendment. Alongside DD, the Second Amendment Foundation (SAF), a non-profit organization based in Washington, also advocates for the right to keep and bear arms. DD has consistently shared digital firearms information on its website, DEFCAD, resulting in millions of downloads. This information encompasses various files related to firearms, including magazines and components, as well as detailed diagrams and assembly methods. The New Jersey Attorney General (NJAG) assumes responsibility for overseeing civil and criminal enforcement efforts within the state. The term "digital firearms information" encompasses Computer Aided Design (CAD) files and Computer Aided Manufacturing (CAM) files.

CAD files primarily serve abstract design purposes, while CAM files enable the construction and manipulation of 2D and 3D models of physical objects. DD has even made digital firearms information available for mailing on physical storage devices. DD contends that the NJAG's endeavors to restrict its publications constitute an unconstitutional form of prior restraint, violating the principles set forth in the United States Constitution. In an attempt to prevent downloads within New Jersey, DD has sought to limit access to the files published on the internet. While DD's computer files published prior to March 2020 are no longer accessible on DEFCAD, they can still be found elsewhere on the internet. DD plans to resume publishing digital firearms information in the future, as long as it aligns with the legal landscape.

NJ SENATE BILL 2465 CRIMINALIZES DISTRIBUTING DIGITAL INSTRUCTIONS FOR 3D PRINTERS TO MAKE FIREARMS

The NJAG reached out to DD's Internet security service providers, DreamHost and Cloudflare, informing them of DD's violation of their Acceptable Use Policy. Additionally, the NJAG made it clear that DD's dissemination of digital firearms information goes against New Jersey law. Senate Bill 2465, passed by the New Jersey Legislature, now criminalizes the distribution of digital instructions for 3D printers that can manufacture firearms. Consequently, the NJAG sent a formal cease-and-desist correspondence to DD, instructing them to halt the publication of digital firearms information for New Jersey residents. In response, DD argued that their actions are protected under the First Amendment.

DD claims that Bill 2465 was specifically enacted to "incarcerate" DD, SAF, and anyone else who shares digital firearms information. The NJAG, on the other hand, referred to the bill as a "powerful tool" to prevent DD founder Cody Wilson and his supporters from sharing such information online. In a settlement agreement known as the First Texas Case, the State Department agreed to revise the USML, allowing for the distribution of CAD files used in the automated production of 3D-printed weapons.

Due to concerns about the enforcement of the new law, DD decided to cease its activities in New Jersey. Soon after, DD and SAF initiated legal action against Bill 2465. The case was filed in the Western District of Texas, targeting the NJAG and the State Department. The court, focusing solely on DD's constitutional arguments and excluding any breach of contract claims against the State Department, proceeded to analyze the motion to dismiss using a three-part analysis. The court also acknowledged the case's procedural history, including its separation from another case and the denial of the plaintiffs' request to move the proceedings to Texas.

ALLEGATIONS OF CONSTITUTIONAL VIOLATIONS

The plaintiffs bring forth a total of nine legal claims, including violations of constitutional amendments such as the First and Second Amendments, as well as the Fourteenth Amendment's equal protection and due process clauses. They also argue that the dormant Commerce Clause and federal preemption, specifically through the AECA and CDA, have been violated. This case is significant as it is one of the first to determine whether CAD and CAM files qualify as protected speech and if the Second Amendment permits the production of firearms. The court engages in a thorough examination of the plaintiffs' First Amendment claim, which encompasses three distinct theories: unconstitutional restrictions on speech, prior restraint, and overbreadth. It is worth noting that the central issue at hand is whether computer code is protected under the umbrella of the First Amendment.

IS COMPUTER CODE PROTECTED SPEECH

The court recognizes the need to address the fundamental question of whether computer code should be considered protected speech, a matter that has yet to be definitively resolved by any court. While there is a general consensus among most courts that computer code can be classified as a form of speech, there remains disagreement regarding its level of protection under the First Amendment. The court draws a distinction between expressive and functional computer code, suggesting that the latter may not enjoy the same level of constitutional protection. However, due to the lack of specific details provided by the plaintiffs regarding the type of computer code involved in this case, the court is unable to make a definitive determination on the First Amendment claim. Additionally, the plaintiffs have not clearly articulated the specific speech they believe the challenged statute seeks to regulate.

CONTENT-NEUTRALITY

Consequently, the court refrains from delving into a discussion on content-neutrality and dismisses the plaintiffs' argument on direct speech regulation for now. Count One is dismissed without prejudice, as the court has yet to determine whether the digital firearms information provided by DD qualifies as protected speech. Moreover, the court asserts that the plaintiffs lack Article III standing to bring a Second Amendment claim since they have not shown a concrete and specific injury. Additionally, the court argues that computer code does not fall under the definition of an "Arm" as stated in the Second Amendment, as it cannot be utilized for defense or to combat an adversary.

The court thoroughly examines the criteria for establishing Article III standing, which necessitates demonstrating an actual or imminent injury that is particular to the individual. It also outlines the requirements for associational standing, which permits an organization to file a lawsuit on behalf of its members. Count Three, which alleges selective enforcement, is dismissed by the court due to the plaintiffs' failure to identify any parties who violated Bill 2465 and were not prosecuted. Furthermore, Count Four, which claims a violation of the due process clause, is dismissed as the plaintiffs have not provided sufficient evidence to support their claim.

COURT DISMISSES DUE PROCESS CLAIM

The court delves into the plaintiffs' argument that the Bill 2465 lacks clarity, emphasizing that a statute becomes unconstitutionally vague when it fails to provide clear notice of what is forbidden or encourages discriminatory enforcement. Dismissing the plaintiffs' due process claim, which encompasses allegations of vagueness, overbreadth, and deprivation of property, the court determines that their overbreadth theory is not separate from their First Amendment overbreadth theory. The court defers addressing the issue until it determines whether the digital firearms information in question qualifies as protected speech. Additionally, the court concludes that the plaintiffs' deprivation-of-property theory is unsustainable in the absence of the State Department as a party to the case.

THE COMMERCE CLAUSE

The court delves into the plaintiffs' argument that Bill 2465, which prohibits the manufacture of firearms without a license or registration and criminalizes the distribution of digital firearms information to unlicensed individuals in New Jersey, violates the Commerce Clause. In their discussion, the court references recent Supreme Court jurisprudence in National Pork, which clarified the scope of the dormant Commerce Clause. After careful consideration, the court determines that Bill 2465 is neutral and does not regulate conduct beyond the borders of New Jersey. Furthermore, the court dismisses the plaintiffs' claim that the bill creates impermissible extraterritorial effects. As a result, the court rejects the plaintiffs' dormant Commerce Clause claim and upholds the constitutionality of Bill 2465.

EXPORT ADMINISTRATION REGULATIONS (EAR) AND THE ARMS EXPORT CONTROL ACT (AECA)

ITAR Compliance

The court dives into a discussion on the Export Administration Regulations (EAR) and the Arms Export Control Act (AECA), which have jurisdiction over the export of arms, ammunition, and other military and defense technology. Recognizing the AECA's requirement for individuals engaged in manufacturing, exporting, or importing items on the USML to register with the DDTC and obtain a license from the State Department, the court explores the implications of the State Rule and the Commerce Rule, which were revised in January 2020 to modify the USML and the CCL. The plaintiffs argue that Bill 2465 is preempted by the federal government's exclusive authority over foreign affairs. However, the court determines that Bill 2465 is not expressly preempted by relevant federal statutory provisions and regulations.

Furthermore, the court concludes that Bill 2465 and the federal framework govern separate conduct, thus dismissing any claim that Bill 2465 is invalid under a field preemption theory. While the plaintiffs assert that Bill 2465 conflicts with the federal regulatory scheme, the court finds their arguments unconvincing and lacking a solid basis for conflict preemption. It highlights that the State Rule and the Commerce Rule explicitly anticipate supplementary regulation of domestic distribution of defense articles, with Bill 2465 acting as a supplement to the federal regulatory framework.

The court also points out that Bill 2465 does not prevent the plaintiffs from complying with relevant federal law. It deems the plaintiffs' AECA preemption claim more of a grievance with the State Department than an actual argument about preemption. Therefore, the court dismisses the plaintiffs' AECA preemption claim without prejudice, along with their CDA preemption claim.

COMMUNICATIONS DECENCY ACT (CDA)

The court delves into the intricacies of the Communications Decency Act (CDA) and its provision that shields websites from being treated as publishers or speakers of content posted by others. After careful consideration, the court concludes that the CDA does not apply to the present case since the content in question is the digital firearms information that Defense Distributed (DD) published on its own website. Consequently, the court grants the defendant's motion to dismiss regarding the plaintiffs' CDA preemption claim. Additionally, the court dismisses the plaintiffs' claims of tortious interference due to the application of sovereign immunity.

SOVEREIGN IMMUNITY

In the midst of the court's deliberation, the issue of sovereign immunity takes center stage, questioning whether the defendant waived this protection by voluntarily engaging in federal court proceedings against the plaintiffs. However, the court ultimately determines that the defendant did not waive sovereign immunity, as it was the plaintiffs alone who chose to bring the matter to federal court. Consequently, the court dismisses the plaintiffs' state law claims with prejudice, granting the defendant's motion to dismiss in its entirety. It is important to note that the court considers all factual allegations in the TAC as true for the purpose of evaluating the motion to dismiss. Furthermore, the case explores the different file formats in which digital firearms information can exist, referencing a previous case that defines "ghost guns" as 3D-printed firearms constructed from plastic components capable of evading security systems.

42 U.S.C. § 1983

The plaintiffs' constitutional claims are brought pursuant to 42 U.S.C. § 1983. The court rejects the plaintiffs' contention that the defendant's motion to dismiss should be denied because it did not address civil censorship. The court notes that the Bill 2465 does not appear to stop the plaintiffs from discussing the best way to 3D print a firearm, but only regulates digital instructions that can be used to program a 3D printer to construct a firearm. The court references two articles that discuss the difficulty in assessing whether computer code is protected speech. The court notes that certain types of speech are not protected by the First Amendment, such as specific criminal acts.

DISTINCTION BETWEEN EXPRESSIVE AND NONEXPRESSIVE CONDUCT

The court carefully examines the distinction between conduct that is expressive and conduct that is not, emphasizing that not all computer code is automatically protected by the First Amendment. The court argues that considering all computer code as expressive would lead to a broad interpretation of what constitutes speech, which is not in line with First Amendment jurisprudence. While the court does not specifically address whether Bill 2465 is an unconstitutional prior restraint, it expresses skepticism that it meets the criteria for such a restraint. The court advises the plaintiffs to address this deficiency in their briefing if they wish to reassert their claim of prior restraint. Furthermore, the court highlights that if the plaintiffs can demonstrate that the Second Amendment includes the right to self-manufacture firearms, the defendant will be required to justify the constitutionality of Bill 2465 in accordance with the Bruen precedent.

"EXTRATERRITORIAL DISCRIMINATION": PLAINTIFFS' CREATION

The court refrains from delving into the matter of which type of digital instruction has the capability to program a 3D printer in producing a firearm. It acknowledges that the term "extraterritorial discrimination" is a term coined by the plaintiffs, and they fail to provide any legal precedent to support its usage. The court separately addresses two theories regarding the violation of the dormant Commerce Clause. It cautions the plaintiffs about the necessity of considering the Supreme Court's interpretation of Pike in the National Pork case. Ultimately, the court determines that Bill 2465 does not exhibit any discrimination against interstate commerce.

INTERACTIVE COMPUTER SERVICE" AND "INFORMATION CONTENT PROVIDER"

The court acknowledges that while there are federal controls on 3D printing of firearms, it does not prevent states from implementing their own regulations. In addition, the court provides definitions for "interactive computer service" and "information content provider" as outlined in Section 230. Furthermore, the court dismisses the plaintiffs' argument that Bill 2465 criminalizes republishing, as they failed to provide any specific incidents of republishing. The court cites Reilly v. Ceridian Corp. to emphasize that mere allegations of potential future harm are not enough to establish standing under Article III. Ultimately, the court dismisses the case brought by Defense Distributed and the Second Amendment Foundation against the Attorney General of New Jersey, Matthew J. Platkin.

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