Defense Distributed; Second Amendment Foundation, Inc. v. ATTORNEY GENERAL OF NEW JERSEY Appeal from the U.S. District Court, D.N.J. Judge…

U.S. COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 23-3058
DEFENSE DISTRIBUTED; SECOND AMENDMENT FOUNDATION,
INC.,
Appellants
v.
ATTORNEY GENERAL OF NEW JERSEY
_____________________________
Appeal from the U.S. District Court, D.N.J.
Judge Michael A. Shipp
No. 3:21-cv-09867
Before: Krause, Scirica, and Rendell, Circuit Judges
Argued Nov. 4, 2024; Filed Feb. 12, 2026 _____________________________
OPINION OF THE COURT
KRAUSE, Circuit Judge.
When it comes to the regulation of firearms, the Second
Amendment is the usual battleground. But in this case, where
the regulation relates to 3D-printing of ghost guns, the fray
shifts into First Amendment territory and treads fresh ground
on the constitutional protections afforded to computer code.

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Appellant Defense Distributed is a developer and online
publisher of computer files that allow anyone with a 3D printer,
including members of Appellant Second Amendment
Foundation, Inc., to produce a fully functional, single-shot
plastic pistol that has no serial number and cannot be traced by
law enforcement. After the Attorney General of New Jersey
and the New Jersey legislature took action to prohibit the
distribution of such files to residents who are not registered or
licensed as gun manufacturers, Appellants sued, claiming that
New Jersey’s actions impermissibly burdened the distribution
of Defense Distributed’s computer code in contravention of the
First Amendment. But 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. Because Appellants failed to plead
sufficient factual matter to permit the Court to assess whether
Defense Distributed’s code is covered, let alone protected by,
the First Amendment, we will affirm the District Court’s
dismissal of the complaint with prejudice.
I. BACKGROUND
A. Factual Background
Defense Distributed is a Texas-based company that
produces and distributes “digital firearms information” (DFI)
used specifically to manufacture functional firearms and
firearm components using a 3D printer. Members of the
Second Amendment Foundation, a non-profit membership
organization based in the State of Washington, would like to

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receive Defense Distributed’s DFI. DFI is an expansive term,
one that Defense Distributed uses to describe the variety of
“coded computer files” it distributes through its website,
including “files concerning a single-shot firearm known as the
‘Liberator,’” “files concerning a firearm receiver for AR-15
rifles,” and “files concerning a magazine for AR-15 rifles.”
App. 260-61; see also App. 256. These files take several
forms, including both “Computer Aided Manufacturing”
(CAM) files—which can be used to construct and manipulate
digital models of physical objects and are “ready for insertion
into object-producing equipment” like 3D printers—and
“Computer Aided Design” (CAD) files—which Appellants
allege serve a similar function but are not ready for insertion
into 3D printers.
The DFI also includes some common file types, like
plain text (.txt) files about firearm assembly methods, the
National Firearms Act and the Undetectable Firearms Act, and
portable document format (.pdf) files, alongside the more
technical “stereolithography (.stl) files,” “Initial Graphics
Exchange Specification (.igs) files,” “SoLiDworks PaRT
(.sldprt) files,” “SketchUp (.skp) files,” and “Standard for the
Exchange of Product Data (‘STEP’) (.stp) files,” all of which
are “about firearm components.” App. 256, 260-61. The
complaint does not identify which of the more technical files
identified, if any, are CAM or CAD files.
Initially, anyone who visited the website could
download the files directly. But in July 2018, the Attorney
General of New Jersey (NJAG) issued a letter threatening legal

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action if, by August 1, Defense Distributed did not “cease and
desist from publishing printable-gun computer files for use by
New Jersey residents” because they could be used to create
untraceable firearms and assault weapons illegal in the state,
and so their publication violated New Jersey’s public nuisance
and negligence laws. App. 334. Defense Distributed
complied, and the files were not published on the website as of
July 31. Instead, from August to November, Defense
Distributed operated its website as an ecommerce platform and
mailed USB drives or SD cards with the files on them to
customers who placed orders.
Then, in November 2018, the New Jersey legislature
followed up with legislation that made it a crime for:
(1) a person who is not registered or licensed to
do so as a manufacturer as provided in chapter
58 of Title 2C of the New Jersey Statutes, to use
a three-dimensional printer or similar device to
manufacture or produce a firearm, firearm
receiver, magazine, or firearm component; or
(2) a person to distribute by any means, including
the Internet, to a person in New Jersey who is not
registered or licensed as a manufacturer as
provided in chapter 58 of Title 2C of the New
Jersey Statutes, 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

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program a three-dimensional printer to
manufacture or produce a firearm, firearm
receiver, magazine, or firearm component.
N.J. Stat. Ann. § 2C:39-9(l)(1)-(2) (the New Jersey Statute).
Defense Distributed resumed publication of its files on
its website in 2020 and continues to do so. Now, however, the
files are transferred through secure, encrypted transmissions
rather than user generated downloads, and unlike prior periods
of publication, there are screening procedures in place which
“deem[] certain [website] visitors ineligible for file
distribution.” App. 263. Given the New Jersey Statute,
Defense Distributed’s distribution excludes “residents of and
persons in the State of New Jersey who lack a federal firearms
license” and those outside the United States. App. 263.
B. Procedural History
This case comes to us with an extensive procedural
history. Appellants filed suit in the Western District of Texas
in July 2018 (the Texas Action), alleging that the NJAG’s
cease-and-desist letter was an unconstitutional restraint on
speech. The district court in Texas initially dismissed the
Texas Action for lack of personal jurisdiction in January 2019,
after which Appellants, along with five additional plaintiffs,
filed a complaint and motion for preliminary injunction in the
District of New Jersey. The claims brought in this second
action were largely identical to the Texas Action but included

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new allegations that the New Jersey Statute amounted to
criminal censorship.
After filing suit in New Jersey, Appellants appealed the
dismissal of the Texas Action to the Fifth Circuit, and the
District of New Jersey stayed proceedings pending resolution
of that appeal. When the Fifth Circuit reversed the dismissal,
Appellants amended their complaint in the revived Texas
Action to add claims related to the New Jersey Statute and to
add the United States Department of State as a second
defendant alongside the NJAG. The NJAG, however, moved
to sever the claims against it from those asserted against the
Department of State and to transfer them to New Jersey.
In April 2021, the Texas district court granted severance
and transferred the claims against the NJAG in the Texas
Action to the District of New Jersey. The next day, Appellants
filed another notice of appeal to the Fifth Circuit. Importantly,
they did not move to stay the transfer order, so the claims
against the NJAG were docketed in the District of New Jersey,
where the NJAG subsequently moved for their consolidation
with the preexisting District of New Jersey suit. Appellants did
not oppose the motion to consolidate before the court-ordered
deadline, so the District Court substantively consolidated the
cases in June 2021.
Almost two months after the transfer had occurred, and
nearly a week after the District Court consolidated the cases,
Appellants for the first time challenged the transfer of the
claims against the NJAG in the Texas Action to the District of

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New Jersey by petitioning the Fifth Circuit for a writ of
mandamus. Five days later, the Fifth Circuit issued an order
purporting, post hoc, to stay the Texas district court’s transfer.
Thereafter, on April 1, 2022, a divided Fifth Circuit panel
issued its opinion in Defense Distributed v. Bruck, 30 F.4th 414
(5th Cir. 2022), holding that the Western District of Texas had
abused its discretion both in severing the claims against the
NJAG from those against the Department of State and in
transferring that part of the Texas Action to the District of New
Jersey. The Court noted that it “lacks power to order a return
of the case to our circuit,” id. at 423, but issued a writ of
mandamus ordering the Texas district court to vacate its
transfer decision and to “[r]equest” that the District Court in
New Jersey return the transferred (and, at this point,
consolidated) case. Id. at 437. The Texas district court
promptly made the request to the New Jersey District Court.
Back in the Third Circuit, the New Jersey District Court
ordered briefing on the Texas district court’s request, construed
Appellants’ responsive letter as a motion to retransfer the
consolidated action back to the Western District of Texas, and,
in July 2022, denied that motion.
Nonetheless, Appellants sought to continue litigating
against the NJAG in Texas. In the action pending there against
the Department of State (i.e., the case from which the NJAG
had been severed), Appellants moved for a preliminary
injunction against the NJAG. But the Texas district court
denied that motion because the NJAG was no longer a party to
the case. Again, Appellants appealed, and, in September 2022,

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a Fifth Circuit motions panel expedited the appeal, with a
concurrence by Judge Ho that again requested that the District
Court in New Jersey return the case to Texas. Def. Distributed
v. Platkin, 48 F.4th 607, 608 (5th Cir. 2022) (Ho, J.,
concurring) (“[W]e’re unaware of any district court anywhere
in the nation to have ever denied such a request.”).
Concurrent with the expedited appeal in the Fifth
Circuit, Appellants filed a second motion to retransfer in the
New Jersey District Court in light of Judge Ho’s concurrence.
The District Court denied this renewed motion, concluding that
it lacked “valid legal justification” insofar as the basis for the
motion rested “entirely on the concurrence” from the Fifth
Circuit. Def. Distributed v. Platkin, No. 19-04753, 2022 WL
14558237, at *4 (D.N.J. Oct. 25, 2022). It also noted that “the
Fifth Circuit’s request may have been improvidently made,”
and observed “comity in no way requires that [the District
Court] substitute the analysis of the Fifth Circuit for [its] own.”
Id.
In December 2022, a merits panel of the Fifth Circuit
affirmed the Texas district court’s denial of Appellants’ motion
for a preliminary injunction, concluding that it “no longer has
the power to hear the case or grant the relief requested.” Def.
Distributed v. Platkin, 55 F.4th 486, 489 (5th Cir. 2022). After
observing that the case was “marked as terminated on the
docket sheet” and was “transferred in its entirety to the District
of New Jersey,” the Fifth Circuit concluded that “[a]lthough
this court has politely requested that the New Jersey district
court return the case, we can do no more.” Id. at 493.

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Meanwhile, litigation proceeded in the District of New
Jersey. While the case was pending there, the presiding judge
retired, and the matter was reassigned. Appellants again
sought reconsideration of their transfer motion in light of this
development, but they again were unsuccessful. The District
Court noted that Appellants “d[id] not identify any intervening
change in the controlling law or any new evidence” and that
reconsideration simply because a case has been reassigned is
“impermissible.” Def. Distributed v. Platkin, No. 21-9867,
2023 WL 3996346, at *2-3 (D.N.J. June 14, 2023). It also
observed that although Appellants had three months “to file a
writ of mandamus with the Third Circuit between the filing of
the Second Transfer Opinion and the reassignment of this
case—they chose not to seek such relief.” Id. at *2.
Accordingly, the District Court denied reconsideration.
On the merits, the District Court granted the NJAG’s
Rule 12 motion to dismiss all of Appellants’ claims.1 See Def.
Distributed v. Platkin, 697 F. Supp. 3d 241, 250 (D.N.J. 2023).
It held that Appellants lacked standing to bring a Second
1 In the District Court, Appellants asserted violations of the
First Amendment, the Second Amendment, the Due Process
and Equal Protection Clauses of the Fourteenth Amendment,
the Commerce Clause, the Arms Export Control Act, and the
Communications Decency Act, as well as two claims of
tortious interference with contract. Because this appeal is
limited to the District Court’s dismissal of Appellants’ First
Amendment, Second Amendment, and Due Process claims, we
likewise limit our discussion of the District Court’s decision to
those claims.

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Amendment challenge to the New Jersey Statute, which
criminalized the manufacture of 3D-printed arms without a
license, because the complaint did not allege that Defense
Distributed, Second Amendment Foundation, or Second
Amendment Foundation’s members were prevented from 3D
printing a firearm or had attempted and could not do so. Id. at
260-61. It also dismissed Appellants’ Due Process claim,
concluding that the New Jersey Statute gives a person of
ordinary intelligence “fair notice of the types and files
prohibited by the statute and what function those files cannot
be used to perform” and “because there is no risk of
discriminatory enforcement of the statute.” Id. at 264.
Finally, addressing the First Amendment claims of
unconstitutional speech restriction, prior restraint, and
overbreadth, the District Court (1) adopted the distinction
between expressive computer code, which it held is protected
speech, and functional computer code, which it concluded
might not be protected; (2) concluded that Appellants had not
pleaded sufficient facts regarding the code’s expressiveness for
the Court to assess which type of code it was; and (3) declined
to reach the issues of content-neutrality, prior restraint, and
overbreadth because of the pleading deficiency. Id. at 257-59.
The Court gave Appellants leave to amend with instructions as
to what additional information it required, id. at 259, but
Appellants elected to stand on their complaint. This timely
appeal followed.

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II. JURISDICTION AND STANDARD OF REVIEW
The District Court had jurisdiction under 28 U.S.C.
§ 1331 and § 1343. We have jurisdiction under 28 U.S.C.
§ 1291. We review a district court’s dismissal for lack of
standing and for failure to state a claim de novo, considering
only the allegations in the complaint and any documents
attached or referenced therein, while accepting all
well-pleaded factual allegations as true and drawing reasonable
inferences therefrom in the plaintiff’s favor. Nekrilov v. City
of Jersey City, 45 F.4th 662, 668 (3d Cir. 2022); In re Schering
Plough Corp. Intron/Temodar Consumer Class Action, 678
F.3d 235, 243 (3d Cir. 2012). On the other hand, we review
the denial of a motion to transfer under 28 U.S.C. § 1404(a) for
abuse of discretion. Danziger & De Llano, LLP v. Morgan
Verkamp LLC, 948 F.3d 124, 129 (3d Cir. 2020).
III. DISCUSSION
On appeal, Appellants contend (1) that the District
Court should have transferred this case back to the Western
District of Texas; (2) that the District Court erred by dismissing
the Second Amendment claim for lack of standing; (3) that the
New Jersey Statute is void for vagueness under the Due
Process Clause of the Fourteenth Amendment; and (4) that the
code Defense Distributed seeks to distribute is protected by the
First Amendment. We address each argument below.

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A. Transfer
Appellants’ primary challenge is to “the district court’s
repeated denial of the Fifth Circuit’s request to retransfer this
action to the Western District of Texas.” Opening Br. at 24.
They argue that the law-of-the-case doctrine and principles of
comity each separately required retransfer and, alternatively,
that transfer was appropriate under 28 U.S.C. § 1404(a). We
disagree and address each of these arguments in turn.
First, Appellants contend that they have a “clear and
indisputable right to retransfer” under the law-of-the-case
doctrine because of the Fifth Circuit’s holding in Bruck that the
district court in Texas abused its discretion by severing and
transferring Appellants’ claims against NJAG. Opening Br. at
28-29. That doctrine “posits that when a court decides upon a
rule of law, that decision should continue to govern the same
issues in subsequent stages in the same case.” Arizona v.
California, 460 U.S. 605, 618 (1983). While law-of-the-case
serves important values like judicial efficiency and respect for
prior determinations in litigation, it is not an inexorable
command, and it “does not limit the tribunal’s power” to decide
a case. Id. Rather, the doctrine “governs [a court’s] exercise
of discretion,” In re City of Phila. Litig., 158 F.3d 711, 718 (3d
Cir. 1998), and because it “only extends to issues that were
actually decided in prior proceedings,” Home Depot USA, Inc.
v. Lafarge N. Am., Inc., 59 F.4th 55, 62 (3d Cir. 2023) (quoting
Farina v. Nokia, Inc., 625 F.3d 97, 117 n.21 (3d Cir. 2010)), it
presupposes that the predecessor court had jurisdiction over the
matter when its decision issued.

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That was not the case here. As the Fifth Circuit
repeatedly observed, “[t]he transfer of the case files to the
district court in New Jersey ended the power of [the Fifth]
[C]ircuit over the transferred claims. Again, the sever-and-
transfer order created two separate suits: one in New Jersey
where NJAG was a party and one in Texas where NJAG was
not.” Platkin, 55 F.4th at 494 (citation omitted). The Fifth
Circuit thus recognized that its decision in Bruck was not
issued in “the same case,” but rather as part of a different action
that remained in Texas. See Bruck, 30 F.4th at 423 (“This court
lacks power to order a return of the case to our circuit.”). So
while it may well be true that “Bruck remains the law of [the
Fifth] [C]ircuit,” Platkin, 55 F.4th at 495, that does not make it
the law of the case before us.
Second, Appellants contend that principles of comity
“dictate” retransfer to the Western District of Texas. Opening
Br. at 25. But their argument falters out of the gate because it
is “not a rule of law, but one of practice.” Mast, Foos & Co. v.
Stover Mfg. Co., 177 U.S. 485, 488 (1900). As the Supreme
Court has explained, “[c]omity persuades; but it does not
command.” Id. In cases of doubt, comity may counsel in favor
of “deference . . . to the judgments of other co-ordinate
tribunals,” but it “demands of no one that he shall abdicate his
individual judgment” on a question of law. Id. at 489.
In this case, the New Jersey District Court weighed the
interests of comity and concluded that there was no binding
order from the originating court to which comity would be
owed. Instead, there was only a non-binding request from the

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Western District of Texas, a request the New Jersey District
Court declined after recognizing that the cases had already
been consolidated and “duly consider[ing]” the Fifth Circuit’s
opinion “[a]s a matter of inter-circuit courtesy.” Platkin, 2022
WL 14558237, at *4 (citation modified). This situation differs
from the cases cited by Appellants that featured orders, rather
than non-binding requests. So we cannot say that the District
Court abused its discretion, much less ignored any legal duty
to retransfer on the basis of comity.
Third, § 1404(a) does not require retransfer. That
statute provides: “For the convenience of parties and
witnesses, in the interest of justice, a district court may transfer
any civil action to any other district or division where it might
have been brought or to any district or division to which all
parties have consented.” 28 U.S.C. § 1404(a). The NJAG did
not consent to retransferring the case to Texas. Thus, as the
movant, Appellants bear the burden of demonstrating the need
for transfer, meaning they must show that the balancing of
public and private interests tilts in their favor. Jumara v. State
Farm Ins., 55 F.3d 873, 879 (3d Cir. 1995). If the movant
makes this showing, the district court still has discretion to
grant the transfer. See id. at 878.
Section 1404(a) “vest[s] district courts with broad
discretion” in transferring cases, but we have identified several
factors district courts must consider. Id. at 883. As to the
public interest, courts must consider (1) the enforceability of
the judgment; (2) the practical considerations that make trial
easy, expeditious, or inexpensive; (3) the court congestion in

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the fora; (4) the local interest in deciding local controversies at
home; (5) the public policies of the fora; and (6) the familiarity
of the judge with applicable state law in diversity cases. Id. at
879-80. District courts must also consider private interest
factors, including (1) each party’s forum preference; (2) where
the claims arose; (3) the convenience to parties and witnesses;
and (4) the location of books and records.2 Id. at 879.
Here, the District Court conducted a methodical
analysis of each of the enumerated factors, concluding that the
private interest factors, as well as the public interest factors
regarding enforceability of the judgment, court congestion, and
familiarity with applicable law were either in equipoise or
marginally favored New Jersey. See Def. Distributed v.
Platkin, 617 F. Supp. 3d 213, 232-40 (D.N.J. 2022). The
District Court conducted an extensive analysis of the most
contested factors: practical considerations and local interest in
deciding local controversies at home. Id. It considered the
implications of transferring the entire consolidated action
versus only the claims in the Texas Action, the likelihood of
duplicative outcomes in each scenario, and the efficiencies to
be gained by litigating in a jurisdiction able to certify questions
to the New Jersey Supreme Court. Id. at 234-37. In addressing
2 In the unusual case where transfer is sought after final
judgment, the movant must also show that the result would
have been different had the suit been transferred. See
Paramount Pictures v. Rodney, 186 F.2d 111, 116 (3d Cir.
1950); In re Nat’l Presto Indus., Inc., 347 F.3d 662, 663 (7th
Cir. 2003).

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the local interests, the District Court weighed the potential
consequences for New Jersey’s regulation of firearms and the
fact that it is New Jersey’s law being challenged; considered
the Fifth Circuit’s take on these issues; and explained its
reluctance to transfer back to Texas now-consolidated claims
that included non-Texas plaintiffs who were never in the Texas
Action. Id. at 237-40. Weighing all these considerations, the
District Court ultimately concluded that transfer was not
appropriate. Id. at 239-40.
Given the District Court’s thorough consideration of the
relevant factors, we cannot say that it abused its discretion by
denying Appellants’ motion under § 1404(a).
* * *
Appellants misconstrue the demands of comity and the
law-of-the-case doctrine, and they do not show the District
Court “base[d] its decision upon a clearly erroneous finding of
fact, an erroneous conclusion of law, or an improper
application of law to fact.” Satterfield v. Dist. Att’y Phila., 872
F.3d 152, 158 (3d Cir. 2017) (citation modified). Accordingly,
we will affirm the District Court’s denial of Appellants’ motion
to retransfer this case to the Western District of Texas.
B. Second Amendment Claim
Appellants next dispute the District Court’s
determination that they lack standing to bring a Second
Amendment challenge to the New Jersey Statute. For standing
to challenge the enforcement of a statute, a plaintiff “must

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show that he or she suffered an invasion of a legally protected
interest that is concrete and particularized and actual or
imminent, not conjectural or hypothetical.” Ellison v. Am. Bd.
of Orthopaedic Surgery, 11 F.4th 200, 205 (3d Cir. 2021)
(citation modified) (quoting Spokeo, Inc. v. Robins, 578 U.S.
330, 339 (2016)). Because a plaintiff must make such a
showing “for each claim that [it] press[es] and for each form of
relief that [it] seek[s],” TransUnion LLC v. Ramirez, 594 U.S.
413, 431 (2021), standing “often turns on the nature and source
of the claim asserted,” Associated Builders & Contractors W.
Pa. v. Cmty. Coll. of Allegheny Cnty., 81 F.4th 279, 288 (3d
Cir. 2023) (quoting Warth v. Seldin, 422 U.S. 490, 500 (1975)).
Both Defense Distributed and the Second Amendment
Foundation claim that the NJAG’s threatened enforcement of
the New Jersey Statute violates the Second Amendment by
“infring[ing] the individual right to make and acquire Arms.”
App. 299. Putting aside the novelty of their asserted Second
Amendment right to “self-manufacture firearms . . . free from
any major regulation whatsoever,” Opening Br. at 53-55, we
agree with the District Court that Appellants have failed to
plead that the alleged violation of this right resulted in any
actual and concrete Second Amendment injury.
As the District Court observed, the operative complaint
includes “no allegation” that Defense Distributed, the Second
Amendment Foundation, “or any member of either entity
attempted to or was prevented from 3D printing a firearm but
could not do so.” Platkin, 697 F. Supp. 3d at 261. This
omission is fatal, for even accepting the merits of their claim

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as true for standing purposes, see FEC v. Cruz, 596 U.S. 289,
298 (2022), Appellants have not alleged that the New Jersey
Statute prevented them or any of their members from
exercising that putative Second Amendment right.3
On appeal, Appellants contend that they need not allege
that anyone was prevented from or unable to 3D print a firearm,
but only that the computer files themselves (i.e., the alleged
speech) are “integral to the Constitution’s ‘right to make and
acquire Arms.’” Opening Br. 52 (quoting App. 299). But “to
be sufficiently particularized, an injury must affect the plaintiff
in a personal and individual way,” Finkelman v. Nat’l Football
League, 810 F.3d 187, 193 (3d Cir. 2016) (citation modified),
and nothing in the operative complaint indicates that
Appellants (or any members) sought to self-manufacture a 3D
printed firearm and were prevented from doing so by the New
Jersey Statute. Nor does the complaint support the inference
that a burden on Appellants’ ability to share files that would
enable others to self-manufacture firearms intrudes upon
Appellants’ own purported right to self-manufacture. As a
3 The complaint asserts that the Second Amendment
Foundation “also brings this action on behalf of its members
because at least one of its members would have standing to sue
in his own right.” App. 254. Appellants have not invoked
associational standing before us, but even if they had, their
pleading deficiency would taint their associational standing
claims as well. See Friends of the Earth, Inc. v. Laidlaw Env’t
Servs. (TOC), Inc., 528 U.S. 167, 181 (2000) (insisting on a
proper showing of injury-in-fact to an organizational plaintiff).

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result, Appellants do not have Article III standing for their
Second Amendment claim, and the District Court correctly
dismissed it.
C. Due Process - Vagueness
Appellants next argue that the District Court erred by
dismissing their claim that subsection (l)(2) of the New Jersey
Statute is void for vagueness under the Due Process Clause.
To recap, that provision bars the distribution 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 manufacture 3D
firearms and parts to New Jersey residents who are not
registered or licensed as firearms manufacturers. N.J. Stat.
Ann. § 2C:39-9(l)(2). Specifically, Appellants contend the
statute’s use of the phrase “may be used” makes it “impossible
for a speaker to know what counts” as prohibited conduct.
Opening Br. at 56. A statute is void for vagueness if 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.” FCC v.
Fox Television Stations, Inc., 567 U.S. 239, 253 (2012)
(quoting United States v. Williams, 553 U.S. 285, 304 (2008)).
While they concede that “some of [their] speech is clearly
covered,” Appellants nonetheless maintain that the statute’s
application to other speech is vague because “what ‘may be
used’ by one programmer can be totally useless to another.”
Opening Br. at 55-56. We disagree for two reasons.

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First, for due process purposes, “perfect clarity and
precise guidance have never been required even of regulations
that restrict expressive activity.” Williams, 553 U.S. at 304
(quoting Ward v. Rock Against Racism, 491 U.S. 781, 794
(1989)). And here, read in context, the statute covers a narrow
category of files and code, and within that narrowed category,
circumscribes distribution of only that code which may be used
for a particular function. Specifically, the statute regulates
only the distribution of “digital instructions in the form of
computer-aided design files” and “other code or instructions
stored and displayed in electronic format as a digital model.”
N.J. Stat. Ann. § 2C:39-9(l)(2). This precision excludes the
vast majority of extant code and file formats from its purview
and provides “individuals and law enforcement officers with
relatively clear guidelines as to prohibited conduct.” Posters
‘N’ Things, Ltd. v. United States, 511 U.S. 513, 525 (1994).
And the statute narrows its prohibition even further by
clarifying that, within that category, it reaches only those files,
code, or instructions “that may be used to program a
three-dimensional printer to manufacture or produce” a
firearm. N.J. Stat. Ann. § 2C:39-9(l)(2). As a result, the statute
does provide a person of ordinary intelligence fair notice of
what is proscribed and does not invite arbitrary enforcement.
Second, by characterizing the statute as limiting the
distribution of code “‘that may be used to’ engage in such
programming,” Appellants manufacture ambiguity. Opening
Br. at 56 (citation modified). The characterization, of
“engag[ing] in such programming,” invokes a broader category

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21
of conduct that includes acts reliant upon the subjective
abilities of a given programmer. But the statute does not cover
that broader category. It only covers the specified files, code,
and instructions that “one may use to engage in the process of
programming a 3D printer to manufacture a firearm.” N.J. Stat.
Ann. § 2C:39-9(l)(2).
In any event, “[w]hat renders a statute vague is not the
possibility that it will sometimes be difficult to determine
whether the incriminating fact it establishes has been proved;
but rather the indeterminacy of precisely what that fact is.”
Williams, 553 U.S. at 306. Accordingly, the Supreme Court
has “struck down statutes that tied criminal culpability
to . . . wholly subjective judgments without . . . narrowing
context.” Id. But the New Jersey Statute does not suffer from
such indeterminacy. Instead, it ties criminal culpability to a
defendant’s distribution of a specific type of code or file that,
irrespective of any other uses it may have, is able to “program
a three-dimensional printer to manufacture or produce a
firearm, firearm receiver, magazine, or firearm component.”
N.J. Stat. Ann. § 2C:39-9(l)(2). Whether a code or file meets
these criteria involves “clear questions of fact,” and while “it
may be difficult in some cases to determine whether these clear
requirements have been met,” “courts and juries every day pass
upon” such technical inquiries. Williams, 553 U.S. at 306
(citation modified). In such instances, the problem of close
cases “is addressed, not by the doctrine of vagueness, but by
the requirement of proof beyond a reasonable doubt.” Id. So
Appellants’ vagueness challenge fails too.

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D. First Amendment Claim
Finally, we reach the heart of the case before us, which
raises a complicated question of first impression for our
Court—whether regulations of computer code trigger
constitutional scrutiny under the First Amendment. In the
District Court, Appellants contended that all computer code is
protected expression, see Platkin, 697 F. Supp. 3d at 258 n.11,
and, as discussed above, the District Court rejected this
argument, concluding that some functional code “may not be
speech,” id. at 258. Appellants’ argument before us appears
unchanged, except to add that the allegations about Defense
Distributed’s code in the complaint establish protected
expression under “any conceivable test.” Opening Br. at
36-37. To assess these contentions and the sufficiency of the
complaint, we must determine whether, and under what
circumstances, code enjoys First Amendment coverage.
Before turning to the merits of that question, however,
some background proves helpful, so we frame our analysis
with a basic overview of what code is, how we interact with it,
and the difficulty of assessing its constitutional salience. We
then consider the First Amendment’s application to the code
before us.
1. Applicable Concepts and Principles
Generally speaking, code is “prepared by a
programmer” and “instruct[s] [a] computer to perform certain
functions.” Advent Sys. Ltd. v. Unisys Corp., 925 F.2d 670,

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674 (3d Cir. 1991). We often interact with it in the form of
software or computer programs, which package code to serve
a particular purpose. See Whelan Assocs., Inc. v. Jaslow
Dental Lab’y, Inc., 797 F.2d 1222, 1229-30 (3d Cir. 1986); see
also Xiangnong Wang, De-Coding Free Speech: A First
Amendment Theory for the Digital Age, 2021 Wis. L. Rev.
1373, 1381 (2021). In this way, code is ubiquitous; it powers
products as varied as self-driving cars, internet search engines,
facial recognition software, web browsers, word processing
systems, and home appliances.
Plainly, code is functional. It provides much of the
architecture for modern society. In doing so, it frequently
functions mechanically—like a machine with which one
tinkers until it is capable of producing a specific outcome or
completing a desired task with little to no meaningful human
engagement. Just as there is nothing inherently expressive in
building a functional car engine, one could also argue that there
is nothing inherently expressive in building purely functional
code. But some code is more than functional. Code is based
in language. See, e.g., Universal City Studios, Inc. v. Corley,
273 F.3d 429, 445 (2d Cir. 2001). And code may, at times,
communicate ideas and information.
The interplay between function, communication,
conduct, and language makes the constitutional salience of
code difficult to discern. This puzzle squarely implicates the
sometimes-implicit threshold inquiry of First Amendment
coverage as distinct from First Amendment protection. See,
e.g., Texas v. Johnson, 491 U.S. 397, 404 (1989) (“[W]e have

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rejected ‘the view that an apparently limitless variety of
conduct can be labeled “speech” whenever the person
engaging in the conduct intends thereby to express an idea.’”
(quoting United States v. O’Brien, 391 U.S. 367, 376 (1968)));
Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293
n.5 (1984) (“[I]t is the obligation of the person desiring to
engage in assertedly expressive conduct to demonstrate that the
First Amendment even applies.”); see also Frederick Schauer,
Free Speech: A Philosophical Enquiry 90 (1982) (“[W]hen we
say that certain acts, or a certain class of acts, are covered by a
right, we are not necessarily saying that those acts will always
be protected. We are saying only that these acts have a facial
claim to be considered with reference to the reasons underlying
the decision to put those acts within the coverage of a right.”).
We are not the first court to consider these nuances and
their First Amendment implications. Indeed, some twenty-five
years ago, three of our sister circuits grappled with the issue.
These cases—Bernstein v. United States Department of
Justice, 176 F.3d 1132 (9th Cir. 1999), reh’g granted, opinion
withdrawn, 192 F.3d 1308 (9th Cir. 1999),4 Junger v. Daley,
209 F.3d 481 (6th Cir. 2000), and Universal City Studios, Inc.
v. Corley, 273 F.3d 429 (2d Cir. 2001)—are often cited as the
origin for a “code is speech” theory of First Amendment
coverage in which all code is presumptively protected by the
First Amendment and thus subject to constitutional scrutiny.
4 Though vacated pending a rehearing that was ultimately
withdrawn as moot, the Ninth Circuit’s decision in Bernstein
is nonetheless illuminating.

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See Wang, supra, at 1380, 1385-89 (collecting cases and
describing the development of “code is speech” theory). And,
consistent with that understanding, Appellants rely on these
cases for their argument here. But fresh appraisal of their
contents reveals a more complicated landscape that warrants
our attention.
The Ninth Circuit was the first to address the issue in
Bernstein v. United States Department of Justice. There, a
professor who wished to publish the code for his encryption
algorithm brought a facial challenge to the export-control
regulation requiring him to obtain a prepublication license.
176 F.3d at 1136. In its reasoning, the Ninth Circuit recognized
the distinction between source code and object code, a
distinction we have also drawn.
Source code is the text of a program written in a
programming language that may be read and understood by
humans. Id. at 1140; Pyrotechnics Mgmt., Inc. v. XFX
Pyrotechnics LLC, 38 F.4th 331, 336 n.5 (3d Cir. 2022)
(“‘Source code’ refers to the human-readable statements—
written in a syntax defined by a programming language like
JavaScript or Python—that make up a computer program.”).
But a computer cannot use source code until it has been
compiled into a machine language called object code.
Bernstein, 176 F.3d at 1140. Object code is meant to be read
by computers, not humans. Id.; see also Pyrotechnics Mgmt.,
38 F.4th at 336 n.5. To determine whether the challenged
regulations exhibited “‘a close enough nexus to expression, or
to conduct commonly associated with expression,’” such that

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there was a risk of censorship, the court first had to decide
“whether encryption source code is expression for First
Amendment purposes.” Bernstein, 176 F.3d at 1139 (quoting
City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750,
759 (1988)). The opinions of the fractured panel anticipated
the debate that has since emerged.
The majority concluded that the “encryption software,
in its source code form and as employed by those in the field
of cryptography, must be viewed as expressive for First
Amendment purposes.” Id. at 1141 (footnote omitted). It
reasoned that (1) source code, unlike object code, is meant for
human understanding,5 and (2) although not all uses of source
code would be expressive, the record demonstrated that, in
cryptography, it was “the preferred means” of expressing
“cryptographic ideas,” and was put to actual expressive uses
like “precisely articulat[ing] hypotheses and formal empirical
testing,” and “facilitating peer review.” Id. at 1140-41. In a
concurring opinion, Judge Bright observed that “encryption
source code also has the functional purpose of controlling
computers and in that regard does not command protection
under the First Amendment.” Id. at 1147 (Bright, J.,
concurring). The dissent, meanwhile, concluded that
“[e]ncryption source code is a building tool,” and although
5 The court ultimately “express[ed] no opinion” on whether
object code was, or could be, expressive because the record
contained no information regarding its “expressive uses.”
Bernstein v. U.S. Dep’t of Just., 176 F.3d 1132, 1141 n.15
(9th Cir. 1999).

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academics can share their code “to reveal the encryption
machine they have built,” its “ultimate purpose . . . [is] to
perform the function of encrypting messages.” Id. at 1148
(Nelson, J., dissenting).
The Sixth Circuit encountered this issue in Junger v.
Daley, where a different professor challenged the same
combination of encryption regulations at issue in Bernstein
because he wanted to freely post on his website the encryption
source code he “wr[ote] to demonstrate how computers work.”
209 F.3d at 483-84. Sweeping more broadly than the Ninth
Circuit, the court concluded that source code is “protected by
the First Amendment” because it “is an expressive means for
the exchange of information and ideas about computer
programming.” Id. at 485.
Unlike the Ninth Circuit, the Sixth Circuit paid no mind
to actual expressive use, but gave primacy to the mere
possibility of expressive use. As a result, it treated all source
code as not only covered by the First Amendment, but
protected and subject to heightened scrutiny. It reasoned that
in the same manner that “a musical score cannot be read by the
majority of the public” and is “not traditional speech,” but is
nonetheless “used as a means of communication among
musicians,” computer source code may also be “unintelligible
to many” but is still “the preferred method of communication
among computer programmers.” Id. at 484. The court
acknowledged that source code has both expressive and
functional features but concluded that consideration of
functional capacity was best accounted for in “the analysis of

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permitted government regulation” through the application of
intermediate scrutiny. Id. at 484-85. It remanded for
application of that standard of review without deciding
whether the regulations—or their amendments—could stand.
Last, we consider the Second Circuit’s analysis in
Universal City Studios, Inc. v. Corley, where the defendant,
who posted online the source and object code for software
designed to unlock DVD encryption protections, raised a First
Amendment defense to the anti-trafficking provision of the
Digital Millenium Copyright Act. 273 F.3d at 439, 452-54.
The court’s decision in Corley built directly on its earlier
disposition in Commodity Futures Trading Commission v.
Vartuli, 228 F.3d 94 (2d Cir. 2000), which predetermined the
constitutional salience of “two ways in which a programmer
might be said to communicate through code.” Corley, 273 F.3d
at 449.
The first way was a programmer’s use of code to
communicate “to the computer.” Id. This, the Corley court
held, is “never protected” because “the interaction between
‘programming commands as triggers and semiconductors as a
conduit,’ even though communication, is not ‘speech’ within
the meaning of the First Amendment.” Id. at 449 & n.23
(quoting Vartuli, 228 F.3d at 111).
The second was a programmer’s communication “to the
user of the program”—that is, a lay consumer. Id. at 449. In
the court’s view, that communication could be, but is “not
necessarily[,] protected,” depending on whether it implicates

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First Amendment interests or conveys information that
engages in the intercession of mind or will of the recipient. Id.
As to this category, the court cautioned that “[m]omentary
intercession of human action” required to cause a code product
to perform its function does not “diminish the nonspeech
component” or bring it under the purview of the First
Amendment. Id. at 451.
Against that backdrop, Corley itself addressed a third
category—a programmer’s communication through code “to
another programmer,” presumably one capable of
understanding code. Id. at 449. Within this third category, the
Second Circuit presumed both source code and object code are
protected by the First Amendment because they are able to
convey information comprehensible to a human. Id. at 446,
448. Its analysis went on to discern the appropriate standard
of review, id. at 450-51, which the Second Circuit, like the
Sixth Circuit in Junger, concluded was intermediate scrutiny,
see id. at 454. Applying that standard, it upheld the provision
of the statute, reasoning it applied only because of the code’s
“capacity to instruct a computer to decrypt CSS,” and “[t]hat
functional capability is not speech within the meaning of the
First Amendment.” Id.
In sum, the Second Circuit’s treatment of the issue also
focused on the “manner” of intended and actual use, see id. at
449, but with unique emphasis on who or what interacted with
the code and how they did so, and specific recognition that at
least some lines of communication are not subject to the First
Amendment at all. And, in the context of

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programmer-to-programmer communications through code, it
set aside any distinction between object and source code. Id.
at 446.
2. Coverage Depends on Expressive Use
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. See Orin S. Kerr, Are We Overprotecting Code?
Thoughts on First-Generation Internet Law, 57 Wash. & Lee
L. Rev. 1287, 1291-93 (2000). 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.
It is this possibility—that some code is purely
functional and therefore outside the First Amendment’s
purview—that debunks the analogy the Junger court drew
between code and musical scores to justify a blanket
application of the First Amendment to code. See 209 F.3d at
484. That analogy has intuitive appeal. As described in
Junger, a score cannot be understood without training, and it is
the preferred means of communication among musicians. But
“[m]usic is one of the oldest forms of human expression,”
Ward, 491 U.S. at 790, and there is no purely functional use of
a music score. The playing and composition of music are

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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 to
rob a bank.” Kerr, supra, at 1292. So, too, is “kicking
someone in the shins . . . an excellent way of communicating
the concept of kicking someone in the shins.” Id. 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. Id.
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. See
id. at 1291-93; Wang, supra, at 1389.
Appellants next argue that all of Defense Distributed’s
code is protected because it is “information,” invoking the
Supreme Court’s decisions in Bartnicki v. Vopper, 532 U.S.
514 (2001), and Sorrell v. IMS Health Inc., 564 U.S. 552

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(2011). But these cases do not support such a broad reading of
First Amendment protection for “information” writ large.
Sorrell addressed a statute that prohibited pharmacies from
selling prescriber data to certain buyers and included dictum
saying that “the creation and dissemination of information are
speech within the meaning of the First Amendment.” 564 U.S.
at 570. In its holding, however, the Court assumed the
underlying information was a “mere commodity” rather than
speech and struck down the law prohibiting the sale of that
information to certain buyers. Id. at 571. It did so not because
of the underlying information, but because the law operated as
a form of viewpoint discrimination and because the
government specifically intended to suppress marketing
messages conflicting with the goals of the state.6 See id. at 571,
580.
Bartnicki, for its part, addressed federal and state
wiretapping statutes that prohibited disclosure of information
acquired by illegally intercepting communications. 532 U.S.
at 519-20, 525. The case involved the interception of a private
phone call between union leaders and the subsequent delivery
of a recording of that call. Id. at 518-19. There, the Court
reasoned that the “purpose of such a delivery [was] to provide
6 Though the Court mused that there was “a strong argument”
that the underlying information was “speech for First
Amendment purposes,” it did not decide as much, and its
observation does not compel Appellants’ desired outcome
under the distinct facts before us. Sorrell v. IMS Health Inc.,
564 U.S. 552, 570 (2011).

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the recipient with the text of recorded statements . . . like the
delivery of a handbill or a pamphlet,” so the law was a
regulation of “pure speech” rather than a regulation of conduct
focused on the “‘use’ of the contents.” Id. at 526-27 (emphasis
added). It is notable that the underlying information in
Bartnicki was itself within the core of the First Amendment’s
classic speech protections. See id. at 517-18 (describing a
“cellular telephone conversation about a public issue,” namely
strategy in a teachers’ union’s collective bargaining
negotiations). The Court nonetheless relied on the purpose of
the distribution as the key consideration in its First Amendment
analysis. Again, the mere dissemination of information in the
abstract was not the driver of First Amendment doctrine.
This is particularly salient given the unique features of
code that remove it from the realm of “pure speech.” The
question before us bears greater resemblance to the cases in
which courts have addressed whether the First Amendment
applies to navigational charts and concluded that, although
they convey information, they are not covered by the First
Amendment. See Winter v. G.P. Putnam’s Sons, 938 F.2d
1033, 1035-36 (9th Cir. 1991) (distinguishing information in a
book about mushrooms from aeronautical charts because
“[a]eronautical charts are highly technical tools. They are
graphic depictions of technical, mechanical data[, and] [t]he
best analogy to an aeronautical chart is a compass. . . . The
chart itself is like a physical ‘product’ while the . . . book is
pure thought and expression”); see also Robert Post,
Recuperating First Amendment Doctrine, 47 Stan. L. Rev.

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1249, 1254 (1995) (“Navigation charts do not receive First
Amendment protection . . . because we interpret them as
speaking monologically to their audience, as inviting their
audience to assume a position of dependence and to rely on
them.”).
Drawing on these cases and discussion, we hold that the
determination of whether code enjoys First Amendment
protection requires a fact-based and context-specific analysis.
Such analysis is shaped by the technical nature of the code
(e.g., source code or object code), how that code is used in
context (e.g., precisely how the writer or user of the code might
interact with the code), who is communicating through the
code and the intended recipient of the communication (e.g.,
programmer-to-human communication, human-to-machine
communication, and so forth), for what purpose or purposes
the computer code operates (e.g., to perform a function, to
express an idea, or some combination thereof), and what, if
anything, the code communicates.
But, as explained below, we do not have occasion today
to go beyond recognition of this fact-based and
context-specific inquiry because, here, Appellants failed to
plead any of these indicia of expressiveness that are necessary
to trigger First Amendment coverage.

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3. Appellants Have Not Pleaded Facts Sufficient to
Assess Whether Defense Distributed’s Code is
Implicated by the Statute or Covered by the First
Amendment
With this framework as our guide, we agree with the
District Court that Appellants’ operative complaint lacks the
information necessary to determine whether the coded
computer files Defense Distributed seeks to distribute are
expressive or functional and, consequently, whether it
implicates the First Amendment.
The complaint alleges that the digital firearms
information “includes, but is not limited to . . . ‘Computer
Aided Design files’ or ‘CAD files,’” as well as “‘Computer
Aided Manufacturing files’ or ‘CAM files,’” and “non-CAD
and non-CAM files such as plain text (.txt) files.” App.
258-59. CAD files can be used “to construct and manipulate
complex two- and three-dimensional digital models of physical
objects” and they “are not ready for insertion into” 3D printers.
App. 256-57. CAM files can be used “to construct and
manipulate the digital two- and three-dimensional models of
physical objects” but “are ready for insertion into” 3D printers.
App. 257 (emphasis added). And, “[w]ith respect to the
3D-printing processes in particular, CAD files and CAM files
do not produce anything automatically. They are not
functional software. They do not self-execute. They are mere
information stores.” App. 257. The complaint then alleges that
the coded computer files include, by way of example, the
following: “files concerning a single-shot firearm known as the

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‘Liberator,’” “files concerning an assembly of the AR-15 rifle
and magazine,” “files concerning an assembly of the AKM
rifle and magazine,” “stereolightography (.stl) files about
firearm components,” “Initial Graphics Exchange
Specification (.igs) files about firearm components,” and
“‘read me’ plain text files about the National Firearms Act and
the Undetectable Firearms Act.” App. 261.
These allegations fall short of plausibly alleging that
Defense Distributed’s code triggers First Amendment
coverage. Because “the plausibility standard . . . asks for more
than a sheer possibility that a defendant has acted unlawfully,”
a complaint that “pleads facts that are ‘merely consistent with’
a defendant’s liability . . . ‘stops short of the line between
possibility and plausibility of entitlement to relief.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (citation modified). And
here, Appellants’ allegations suffer from two fatal deficiencies:
(1) they do not allege how sharing their coded computer files
violates the New Jersey Statute; and (2) they have not plausibly
pleaded that Defense Distributed’s code is covered by the First
Amendment.
As to the first deficiency, the statute by its terms
regulates code that “may be used to program” a 3D printer.
N.J. Stat. Ann. § 2C:39-9(l)(2). Consistent with our previous
analysis of the statute’s scope, it simply does not prohibit or
burden the distribution of things like “files about the National
Firearms Act.” App. 261. But the complaint fails to identify,
or provide information sufficient to infer, which aspects of the
digital firearms information are proscribed by the statute.

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While the complaint lists a variety of file types (e.g.,
(.igs), (.stl), (.skp) (.pdf) (.stp)), it is unclear which, if any, of
those are CAD or CAM files. It is unclear what information
those files provide, how they are used, whether they are part of
the 3D printing process, or what ideas they convey, if any.
And, by way of further example, it does not make clear what
the “files concerning” the Liberator or an AR-15 magazine are.
App. 261. From the face of the complaint, we have no way to
determine whether those files include details about the
Liberator’s history or a comparison of the AR-15 magazine to
the magazines of other weapons, in which case the statute has
nothing to say about their distribution.
The second deficiency is that, even assuming the digital
firearms information includes code whose distribution is
limited by the New Jersey Statute because it “may be used to
program a three-dimensional printer to manufacture or produce
a firearm, firearm receiver, magazine, or firearm component,”
N.J. Stat. Ann. § 2C:39-9(l)(2), the complaint does not include
sufficient allegations to assess whether that code is covered by
the First Amendment. Appellants allege only that “digital
firearms information . . . is an important expression of
technical, scientific, artistic, and political matter” and that
“[e]ach and every computer file at issue has these values in the
abstract.” App. 258. But we must “disregard threadbare
recitals of the elements of a cause of action, legal conclusions,
and conclusory statements.” Oakwood Lab’ys LLC v. Thanoo,
999 F.3d 892, 904 (3d Cir. 2021) (quoting James v. City of
Wilkes-Barre, 700 F.3d 675, 681 (3d Cir. 2012)). Setting aside

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such conclusory allegations, Appellants’ complaint is left with
nothing sufficient to assess whether there is a plausible
entitlement to relief.
It is not lost on us that CAD and CAM files may not, as
a technical matter, fit neatly within the
source-code/object-code framework. After all, useful as it is
for a First Amendment analysis of that code and analogous
files, different file formats could raise somewhat different
issues, and here, we have a variety in play (.dwg, .stp, .stl, .igs,
.sldprt, .skp, .txt). Ultimately, however, we have no occasion
to consider the specific properties of CAD and CAM files, nor
whether those properties suggest they are protected by the First
Amendment, because the complaint does not sufficiently
explain the technical nature of those files. Indeed, the District
Court provided Appellants with an opportunity to amend their
complaint and include additional allegations that would enable
the Court to assess whether they have plausibly alleged that the
code at issue is covered by the First Amendment. Appellants
declined to do so, and the District Court therefore correctly
dismissed their complaint with prejudice.
IV. CONCLUSION
For the foregoing reasons, we will affirm the District
Court’s order.

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Counsel for Appellants
Charles R. Flores [ARGUED]
FLORES LAW
Joshua Blackman
Counsel for Appellees
Angela Cai [ARGUED]
Timothy Sheehan
OFFICE OF ATTORNEY GENERAL OF NEW JERSEY
Counsel for Amicus Appellee County Prosecutors Association
of New Jersey
William P. Miller
BERGEN COUNTY OFFICE OF PROSECUTOR
Counsel for Amicus Appellee Everytown for Gun Safety
Support Fund
Aaron C. Esty
EVERYTOWN LAW

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