As California prosecutes several gun owners who live thousands of miles away for hosting and disseminating computer code that allow users to print gun parts and several other blue states are considering similar legislation, the Third Circuit Court of Appeals has weighed in on a challenge to New Jersey's ban on distribution of such files to residents who are not registered or licensed as gun manufacturers.
Despite the fact that courts across the country have held that computer code is speech protected by the First Amendment, the three-judge panel (comprised of Obama, Clinton, and Reagan appointees) concluded that a district court was correct in dismissing Defense Distributed's complaint because it failed to demonstrate that the files in question are "expressive" in nature.
The Third Circuit has ruled that while "computer code can be covered by the First Amendment," Defense Distributed’s lawsuit against New Jersey’s ban on 3D-printed gun files must be dismissed because it "failed to plead any of these indicia of expressiveness that are necessary to… pic.twitter.com/7205t5hEhx
— Firearms Policy Coalition (@gunpolicy) February 12, 2026
The panel concluded that "while it is certainly true that some computer code falls under the purview of the First Amendment, purely functional code with no actual or intended expressive use does not."
We join our sister circuits in holding that computer code can be covered by the First Amendment. But we also hold that coverage cannot be assumed because code is inherently functional. To invoke the protections of the First Amendment, the proponent must show that the particular use of the code burdened by a regulation involves the expression or communication of ideas in a way that implicates the First Amendment. Purely functional code with no expressive purpose, use, or intent is simply not covered by the First Amendment.
The panel drew an analogy to a musical score, which "cannot be understood without training, and... is the preferred means of communication among musicians."
The playing and composition of music are inherently expressive in every instance, and unlike code, a musical score is not capable of making a purely inexpressive task or act occur by the very fact of its having been written.
In contrast, conduct that merely has the capacity to communicate something does not necessarily warrant First Amendment coverage. Robbing a bank, for example, “provides the most instructive way to teach someone how torob a bank.” So, too, is “kicking someone in the shins . . . an excellent way of communicating the concept of kicking someone in the shins.” But we do not have a First Amendment right to do either because our jurisprudence recognizes that the mere capacity to communicate does not transform physical conduct into protected speech.
The same is true in cyberspace. Laws that prevent the distribution of destructive viruses or ransomware are not per se unconstitutional on the ground that they infringe upon coders’ freedom of expression. Nor does the First Amendment provide absolute protection against tort liability for manufacturers whose products cause damage because they run on defective code. In short, a blanket protection because “code is speech” is no more viable in cyberspace than it is in physical space.
I would argue that these files are inherently expressive in nature; they're an expression of support for the right to keep and bear arms as well as instructions for 3D printers and CNC machines. I know more than one gun owner who has downloaded these files with no intent to ever use them to print a frame or receiver. The file itself is an expression of freedom, which is why these gun owners want to possess them.
I'd also argue there's a big difference between destructive viruses and malware and a 3D printed firearm, and not just because firearms are protected by the Second Amendment. The former are designed to be malicious, without any potential positive benefit. Firearms, on the other hand, can be used for good or evil, depending on the end user's intentions.
My hope is that Defense Distributed and the Second Amendment Foundation will seek an en banc review of the panel's decision, but I also wonder if the judges haven't laid out a way for Defense Distributed to ensure that their code meets this restrictive definition of "expressive" speech going forward. I'm not nearly proficient enough in coding to know how to do that, but it seems like it would theoretically be possible to include expressive speech within both the source and object code, even if that speech wouldn't be necessary to print out a frame, receiver, or any other gun part.
