Is Code Protected Speech?: 3D-Printed Firearm Files and the First Amendment

By: Dan von Sohsten

Modern 3D printing technology has quietly upended one of the foundational assumptions behind American gun regulation, that manufacturing a firearm requires specialized tools, materials, and expertise. Today, anyone with a consumer-grade 3D printer and an internet connection can download a computer-aided design (“CAD”) file, feed it into a 3D printer or CNC machine, and produce a fully functional firearm in a matter of hours. These weapons have no serial numbers and are completely untraceable by law enforcement. Gun control advocates have labeled them “ghost guns,” and they have prompted a growing wave of state and federal regulations aimed at restricting their proliferation.[1]

Legally speaking, restricting the guns themselves is the easier part. The harder question, and the one that has produced a decade of unresolved litigation, is whether the government can restrict the digital files used to make them. Those files are just lines of code and strings of numbers describing geometric shapes.[2] The people who share them argue, that sharing a file is not the same as making a gun, it’s closer to publishing a book. And if that is true, then efforts to suppress those files may run directly into the First Amendment.[3]

This is not merely a theoretical concern. Federal courts have now grappled with it and issued two major appellate decisions that reveal just how unsettled this area of law remains. Both cases center on the same controversial figure, Cody Wilson, the co-founder of a Texas nonprofit called Defense Distributed (“DD”).[4] Accordingly, understanding the legal landscape requires starting with him.

Cody Wilson and the “Liberator” Controversy

Cody Wilson founded DD in 2012 with the explicit goal of making the state’s ability to regulate firearms technologically irrelevant. His nonprofit developed digital schematics for firearms and gun components and distributed them through a file-sharing platform called DEFCAD.com.[5] In 2012, Wired Magazine named Wilson one of “The 15 Most Dangerous People in the World” alongside drug cartel leaders and foreign dictators.[6]

In May 2013, DD released plans for the Liberator, the first fully 3D-printed functional handgun. Just days after the release, Wilson received a letter from the State Department’s Office of Defense Trade Controls Compliance ordering him to remove the files immediately.[7] The Department asserted that the schematics constituted “technical data” subject to export controls under the Arms Export Control Act (“AECA”) and its implementing regulations, the International Traffic in Arms Regulations (“ITAR”).[8] Under those rules, releasing such data to foreign nationals, by posting files to the open internet, without prior government approval, was deemed an “export” under the AECA and ITAR and was thus illegal.[9]

In April 2015, DD filed suit against the State Department in federal court in Texas, arguing that the prepublication approval requirement was an unconstitutional prior restraint in violation of the First Amendment.[10] The litigation that followed would drag on for years, and ultimately produce a 2018 settlement in which the government agreed to let DD sell CAD files to customers in the United States.[11] The settlement was revealing, a State Department spokesman later confirmed that the Justice Department had advised settling because the government likely would have lost on First Amendment grounds if the case had proceeded.[12]

Def. Distributed v. U.S. Dep’t of State: The Court Sidesteps a Difficult Question

Before the settlement, the dispute produced a significant ruling from the Fifth Circuit Court of Appeals. In Def. Distributed v. U.S. Dep’t of State, DD appealed the district court’s denial of a preliminary injunction, which would have allowed the files to be posted online while litigation continued.[13] The Fifth Circuit affirmed the denial, but it did so on narrow procedural grounds, explicitly declining to resolve whether the CAD files at issue were constitutionally protected speech.[14]

The majority concluded that the district court had not abused its discretion in weighing two of the four factors required for preliminary relief, the balance of harms and the public interest.[15] On both factors, the majority held that the government’s national security and foreign policy interests outweighed DD’s First Amendment interests at the preliminary injunction stage. Importantly, the court reasoned that once the files were released to the internet, they could never be recalled, meaning a wrongly granted injunction would permanently harm national security in a way that a wrongly denied injunction would not. The temporary harm to constitutional rights, the majority concluded, was less irreversible than the permanent harm to national security.[16]

But the Fifth Circuit’s majority was explicit that it was not deciding whether the files were protected speech or whether the ITAR licensing provisions amounted to an unconstitutional prior restraint scheme. Those questions, the court acknowledged, were difficult ones that would need a more fully developed record.[17] The dissent accused the majority of failing to take the First Amendment issue seriously.[18] In the dissent’s view, the case posed the stark question of whether the government could impose a prior restraint on the publication of lawful, unclassified, publicly available technical data simply by invoking the phrase “national security.”[19] The dissent argued that the Supreme Court had long held that the government’s vague invocation of national security concerns cannot override core First Amendment protections and that the majority’s approach allowed exactly that.[20]

The dissent also raised a problem with the ITAR scheme itself, the regulations gave the State Department virtually unfettered discretion to deny licenses without any meaningful judicial review.[21] Under longstanding First Amendment doctrine, a licensing scheme that vests such unchecked discretion in government officials and lacks adequate procedural safeguards is unconstitutional.[22] Whether the majority’s silence on those concerns reflected restraint or avoidance, the case settled before the First Amendment issue was resolved definitively.

Def. Distributed v. Att’y Gen. of N.J.: A New Test and a New Obstacle

The saga did not end with the settlement, DD continued operating and continued fighting. In 2018, New Jersey’s attorney general sent the company a cease-and-desist letter[23] and the state legislature enacted a law that criminalized the distribution of digital instructions, templates, or computer code that could be used to program a 3D printer to manufacture a firearm or firearm components when provided to individuals who are not licensed gun manufacturers.[24] DD and the Second Amendment Foundation challenged the law as an unconstitutional restriction on speech and a violation of both the First and Second Amendments.

After years of procedural maneuvering across multiple courts, the case reached the Third Circuit Court of Appeals. Recently, on February 12, 2026, a unanimous court issued its decision in Def. Distributed v. Att’y Gen. of N.J.[25] The court affirmed the dismissal of the complaint, but in doing so, it made a significant contribution to First Amendment doctrine by establishing a new, five-factor test for determining whether computer code qualifies for First Amendment protection.[26]

The unanimous court rejected the plaintiffs’ sweeping argument that all computer code is categorically protected speech.[27] The court acknowledged that some code enjoys First Amendment protection, other circuits had said as much in previous cases.[28] But the Third Circuit concluded that those cases did not stand for a blanket rule. Instead, the court drew a critical distinction between code that is expressive, communicating ideas to human readers, and code that is purely functional, operating mechanically to make a machine perform a task with no meaningful human engagement.[29]

The court illustrated the point with an analogy to aeronautical charts. Courts have previously held that navigational charts convey information but are not protected by the First Amendment because their communicative function is purely instrumental.[30] Purely functional code, the Third Circuit reasoned, may occupy a similar position outside the First Amendment’s protections, regardless of how the government regulates it.[31]

To determine on which side of the line a particular piece of code falls, the Third Circuit articulated a five-factor, context-specific test. Courts must consider: (1) the technical nature of the code, (2) how the code is actually used in context, (3) who is communicating through the code and who the intended recipient is, a programmer addressing other humans, or a person issuing instructions to a machine, (4) the purpose or purposes for which the code operates, whether to perform a function, express an idea, or some combination, and (5) what, if anything, the code actually communicates.[32] Only after applying this test can a court determine whether code is protected by the First Amendment, and, if it is protected, whether it is also protected from the specific government restriction at issue.[33]

Despite creating this framework, the Third Circuit declined to apply it to DD’s files for procedural reasons and affirmed the district court’s dismissal of the complaint with prejudice.[34] The court held that the plaintiffs had failed to plead sufficient facts in their complaint to allow the court to assess whether their code satisfied the test. Without allegations about how the code was used, who interacted with it, and what it communicated beyond its mechanical function, the court had nothing to work with.[35] The Second Amendment Foundation reacted with frustration, arguing that the ruling was motivated by the judges disfavor of firearms and was inconsistent with prior circuit precedents treating code as speech.[36]

Moving Forward: A Legal Landscape in Flux

Taken together, the Fifth and Third Circuit decisions reveal a legal landscape that is still under construction. No federal court has yet issued a definitive ruling on the merits of whether the First Amendment protects the distribution of 3D-printed gun design files. The Fifth Circuit punted on the question in 2016, and the Third Circuit created a promising new framework in 2026 but did not apply it. The Supreme Court has not weighed in yet and different circuits may ultimately reach different conclusions, potentially creating the kind of circuit split that would compel the Supreme Court to act.

What is clear is that the First Amendment question is a difficult and important question to answer. Opponents argue there are serious public safety concerns as 3D-printed ghost guns have turned up at crime scenes in increasing numbers and are in the hands of people who cannot legally purchase firearms through conventional channels.[37] On the other hand, the government’s ability to restrict the flow of digital information has historically been heavily restricted under the First Amendment.[38]

The Supreme Court has never permitted the mere invocation of harm to justify prior restraints on the publication of lawful, unclassified information.[39] Whether code that facilitates the manufacture of firearms is sufficiently expressive to bring it within that tradition or sufficiently functional to take it outside First Amendment protection remains an open question that courts are only beginning to answer.

In conclusion, what is eminently clear is that this dispute is not going away any time soon. As 3D printing technology becomes cheaper and more accessible, and as digital files become easier to distribute, the pressure on courts to resolve these questions will only intensify. The legal framework that ultimately emerges will have consequences not just for gun policy, but for how the First Amendment applies in the digital age more broadly.

 

 

 

Link to Image Source:  https://gen.medium.com/the-3d-printed-gun-isnt-coming-it-s-already-here-6855fd394a47

[1] See Ghost Guns, Giffords Law Center, https://giffords.org/lawcenter/gun-laws/policy-areas/hardware-ammunition/ghost-guns/ (last visited Mar. 13, 2026).

[2] See Maria Gazarkh, Everything you need to know about CAD file formats, CAD Exchanger (Aug. 18, 2021), https://cadexchanger.com/blog/everything-you-need-to-know-about-cad-file-formats/.

[3] See Erik Larson, Are Blueprints for 3D-Printed Guns Protected by the Constitution? A U.S. Judge is Considering the Question, Fortune (Aug. 27, 2019), https://fortune.com/2019/08/27/3d-printed-gun-digital-blueprints/.

[4] Cody Rutledge Wilson, Southern Poverty Law Center, https://www.splcenter.org/resources/extremist-files/cody-rutledge-wilson/ (last visited Mar. 13, 2026).

[5] See id.

[6] The 15 Most Dangerous People in the World, Wired (Dec. 19, 2012), https://www.wired.com/2012/12/most-dangerous-people/.

[7] Letter from Glenn Smith, Chief, Enf’t Div. of the Off. of Def. Trade Controls Compliance, to Cody Wilson, Founder, Def. Distributed (May 8, 2013), https://upload.wikimedia.org/wikipedia/commons/0/04/Letter-from-Department-of-State-to-Defense-Distributed.pdf [hereinafter State Dep’t Letter].

[8] Id.; see generally 22 U.S.C. §§ 2751-2799; 22 C.F.R. §§ 120-130.

[9] State Dep’t Letter, supra note 7, at 2.

[10] Def. Distributed v. U.S. Dep’t of State, 121 F.Supp.3d 680, 688 (W.D. Tex. 2015).

[11] Andy Greenberg, A Landmark Legal Shift Opens Pandora’s Box for DIY Guns, Wired (July 10, 2018), https://www.wired.com/story/a-landmark-legal-shift-opens-pandoras-box-for-diy-guns/.

[12] Deirdre Shesgreen & Josh Hafner, Courts in Three States Bar Release of 3D-Printable Gun Blueprints, USA Today (July 31, 2018), https://www.usatoday.com/story/news/politics/2018/07/31/3-d-printable-guns-donald-trump/870557002/.

[13] Def. Distributed v. U.S. Dep’t of State, 838 F.3d 451 (5th Cir. 2016).

[14] Id. at 460.

[15] Id. at 459.

[16] Id. at 460.

[17] Def. Distributed v. Dep’t of State, 838 F.3d at 461.

[18] Id. at 461.

[19] Id. at 462.

[20] Id. at 474-76.

[21] Def. Distributed v. Dep’t of State, at 470-71.

[22] Id. at 472-73.

[23] Letter from Gurbir Grewal, New Jersey Attorney General, to Def. Distributed (July 26, 2018), https://www.scribd.com/document/385260710/NJ-Cease-and-Desist-Letter.

[24] N.J. Stat. Ann. § 2C:39-9(l)(2) (2025).

[25] Def. Distributed v. Att’y Gen. of N.J., No. 23-3058, 2026 U.S. App. LEXIS 4341 (3d Cir. Feb. 12, 2026).

[26] Id. at *37.

[27] Id. at *32.

[28] Id. at *26-27.

[29] Def. Distributed v. Att’y Gen. of N.J., 2026 U.S. App. LEXIS 4341, at *32-33.

[30] Id. at *36.

[31] See id. at *36.

[32] Id. at *37.

[33] See Def. Distributed v. Att’y Gen., at *37.

[34] Id. at *38-42.

[35] Id. at *41-42.

[36] Diana Novak Jones, Not all computer code protected as speech, US appeals court finds in ghost gun case, Reuters (Feb. 12, 2026), https://www.reuters.com/legal/government/not-all-computer-code-protected-speech-us-appeals-court-finds-ghost-gun-case-2026-02-12/.

[37] Ghost Guns, Giffords Law Center, https://giffords.org/lawcenter/gun-laws/policy-areas/hardware-ammunition/ghost-guns/ (last visited Mar. 13, 2026).

[38] See Reno v. Am. Civ. Liberties Union, 521 U.S. 844, 870 (1997).

[39] See generally N.Y. Times Co. v. United States, 403 U.S. 713 (1971).