The Supreme Court has directed New Jersey Attorney General Jennifer Davenport to respond to a cert petition filed by Defense Distributed and Second Amendment Foundation in a case that could result in a major First Amendment ruling.
There are a couple of issues presented in the cert petition. The first deals with the convoluted path the lawsuit has traveled. The lawsuit began in Texas but was transferred to New Jersey, and now the Fifth Circuit and Third Circuit split over whether it should go back to its original Texas court.
The second issue, and the one that's more pertinent to Second Amendment advocates, is whether "the First Amendment covers communicative computer code without more, or only upon additional indicia of expressiveness." In other words, is pure code "speech," or does there need to be some form of expressiveness before First Amendment protections kick in.
Defense Distributed is a challenge to the New Jersey law that prohibits the dissemination of "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" to any New Jersey resident, regardless of where that information originated from. The server housing those files could be located in Florida, Texas, or even overseas, but if a Garden State resident accesses and downloads those files the host could be subject to criminal charges.
The Third Circuit held that pure code is not protected by the First Amendment because it is not expressive in nature, even if the files can be put towards expressive ends (printing a magazine as a political statement, for instance). The Fifth Circuit, though, might very well reach a different conclusion based on an earlier case known as Junger.
The plaintiffs are asking SCOTUS to "grant the petition to resolve both of these important splits," arguing that "he case should not have been dismissed in New Jersey," and it should now be sent back to Texas (and the Fifth Circuit's jurisdiction) for "real First Amendment scrutiny."
Davenport filed a waiver of the right to respond a week ago, and the Court had originally scheduled Defense Distributed for discussion at its October 9 conference. That will be pushed back, though, since the Court has now told Davenport she must submit a formal reply to the cert petition, which is due on October 26.
We don't know how many justices want to hear from New Jersey. It only takes one to make that request, and it doesn't guarantee that the Court will ultimately grant cert. It is, though, a sign of interest on the part of at least one justice. And given the First Amendment implications here, I wouldn't be shocked if a majority of the Court wants to grant cert even if they're not all in agreement about what the outcome should be.
SCOTUS has never directly answered the question of "is code speech?" Lower courts generally rely on a handful of cases like Bernstein v. US and Junger v. Daley that have generally found that computer code is protected by the First Amendment.
The Third Circuit put their own spin on that philosophy, though, when it decided that pure code is not "expressive" in nature, and therefore outside of the First Amendment's protections.
More and more Democrat-run states are instituting their own restrictions and bans on computer files that can be used in printing gun parts, so the issue is certainly timely. And since we do have a circuit court split on the issue, that should give the justices another reason to grant cert. In addition, the venue fight is one that could render various appellate courts fighting turf battles over various lawsuits, so I think there's a pretty compelling case that SCOTUS needs to step in and referee the dispute between the Third and Fifth Circuits.
The request for a reply is a good sign. Without it, the Court would almost certainly have denied Defense Distributed outright. Now, though, I think there's actually a pretty decent chance that at least four justices will find the case compelling enough to grant cert and address both of the issues raised by the plaintiffs.
Editor’s Note: The radical Left will stop at nothing to enact their extreme gun control agenda and strip us of our Second Amendment rights.
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