New Jersey’s crackdown on computer code written to 3D print gun parts will soon receive the Supreme Court’s attention. A cert petition has been filed with the Court in Defense Distributed v. Davenport, which challenges the New Jersey statute that makes it a criminal offense for a person to distribute to any New Jersey resident “digital instructions in the form of computer-aided design files or other code or instructions stored and displayed in electronic format as a digital model that may be used to program a three-dimensional printer to manufacture or produce a firearm, firearm receiver, magazine, or firearm component.”
The Second Amendment Foundation filed the cert petition this week, eight years after SAF and Defense Distributed initially sued over the New Jersey statute, arguing that it violates the First Amendment’s protections on speech. In its petition, the group argues that the case actually involves circuit court splits on two different issues: whether code is speech, and where this lawsuit should have been adjudicated.
On venue, the Third Circuit kept in New Jersey an action the Fifth Circuit held belongs in Texas. On the merits, the Third Circuit denied computer code’s First Amendment coverage by expressly rejecting a Sixth Circuit rule that would have supplied it. Both splits warrant review and this case is the ideal vehicle.
The venue question presents an unprecedented intercircuit standoff over control of the same case. It began in Texas and was transferred to New Jersey.The Fifth Circuit and Third Circuit now split over whether it should go back to its original Texas court.The Fifth Circuit directed the case back to Texas, held the transfer order unlawful, vacated it, and directed a formal request for the District of New Jersey to return the case to Texas. The Third Circuit kept the case in New Jersey. The District of New Jersey refused the return request after rejecting comity and law of the case; it then independently reweighed the transfer factors and reached the opposite venue result; the Third Circuit affirmed.
Over time the standoff escalated. After New Jersey first refused the formal return request, Judges Ho and Elrod urged it to honor the “longstanding tradition of comity” and return the case. New Jersey refused again, prompting another Fifth Circuit panel to reiterate Bruck and hold that the case “should be heard” in Texas. New Jersey then refused a third time.
The venue dispute is fascinating, and that alone might pique the interest of at least four justices. The real issue, though, is whether New Jersey can criminalize the dissemination of code. The Third Circuit held that files that can be used to print gun parts (or even an entire firearm like the Liberator) are not speech because it’s not “expressive” in nature. That puts the appellate court in conflict with the Sixth Circuit, which has previously held in a case known as Junger that communicative computer code is protected speech despite its functional nature.
The dispute is one of doctrinal ordering: where does functionality enter the First Amendment analysis? Junger places it after coverage, where functional capacity may bear on the government’s justification for regulation and the scrutiny that regulation receives. The Third Circuit places it before coverage, using functionality to demand additional proof of expressiveness before the First Amendment applies at all.
… The split is outcome-determinative. Petitioners allege that the files communicate technical, scientific, artistic, and political information and do not self execute: “They are not functional software. They do not self-execute. They are mere information stores.” Junger treats those allegations as establishing coverage and considers functionality later; the Third Circuit’s contrary threshold rule does not. This case therefore cleanly presents the threshold rule and leaves the remaining First Amendment questions for remand.
The Court should grant the petition to resolve both of these important splits. The case should not have been dismissed in New Jersey. It should be sent back to Texas for real First Amendment scrutiny.
The cert petition does not demand that SCOTUS answer whether all computer code is speech, merely that it address where “functionality” of speech factors into whether it has First Amendment protection. That narrow question may also make the case more palatable to justices like John Roberts, who seems to like carefully tailored questions that don’t require broad, sweeping rulings.
I don’t know how long SCOTUS can dodge the fundamental question about the nature of computer code and whether it can, at least in some circumstances, fall under the First Amendment’s protections, but if the Court grants cert and eventually sides with the plaintiffs, they could kick the can down the road for a few years and let the Fifth Circuit draw its own conclusions first.
Editor’s Note: The radical Left will stop at nothing to enact their radical gun control agenda and strip us of our Second Amendment rights.
Help us continue to report on and expose the Democrats’ gun control policies and schemes. Join Bearing Arms VIP and use promo code FIGHT to receive 60% off your membership.
Read the full article here
