Defense Distributed v. NJ Attorney General - 3D-Printed Ghost Guns & First Amendment

U.S. C OUR T OF A PPEALS FOR THE T HIRD C IRCUIT No. 23 -3058 D EFENSE D ISTRIBUTED; S ECOND A MENDMENT F OUNDATION, I NC., Appellants v. A TTORNEY G ENERAL OF N EW J ERSEY ________________________ _____ Appeal from the U.S. Dist rict Court, D.N.J. Judge Michael A. Shipp No. 3:21- cv -09867 Before: Krause, Scirica, and Rendel l, Cir cuit Judges Argued Nov. 4, 2024; Filed Feb. 12, 2026 ___________________________ __ O PINION OF THE C OUR T K RAUSE, 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 protect ion s afforded to computer code.

2 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 no t registered or licensed as gun manufacturers, Ap pellants 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 w hether 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 pr ejudice. I. BACKGROUND A. Factual Background Defense Distributed is a Texas-based company that produces and distributes “digital firearms information” (DFI) used specifically to manufact ure 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

3 receive Defense Distributed’s DFI. DFI is an expansive term, one that Defense Distributed uses to describe the variety of “coded computer files” it distribu tes through its website, including “files concernin g 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. The se files take several forms, including both “Computer Aided Manufacturing” (CAM) files — whic h 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 — whic h Appellants allege serve a similar function but are no t ready for insertion into 3D printers. The DFI also includes some common file types, like plain text (.txt) files about firearm assembly meth ods, the National Firearms Act and t he Undetectable Firearms Act, and portable document format (.pdf) files, alongside the more technical “stereolithography (.stl) files,” “Initial Graphics Exchange Sp ecification (.igs) files,” “SoL iDworks 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. Th e complaint does not identify which of the more technical files identified, if any, are CAM or CAD fi les. 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

4 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 weap on s 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 op erated 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 legislati on 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- ai ded design files or other code or instructions stored and displayed in electronic format as a digital model that may be used to

5 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 pe riods 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 outsi de 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 dismisse d 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

6 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. Th e NJAG, however, moved to sever the clai ms against it from those as serted again st the Department of State and to transfer them to New Jersey. In April 2021, the Texas d istrict court granted severance and tra nsferred the claims against the NJAG in the Texas Action to the District of New Jersey. The next day, Appel lants filed another no tice 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 con solidation 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 Act ion to the District of

7 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 d istrict c ourt’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 po wer 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 de cision 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 d istrict c ourt’s request, construed Appellants ’ responsive le tter as a motion to re transfer the consolidated action back to the W estern District of Texas, and, in July 2022, denied th at motion. Nonetheless, Appellants sought to continue litigating against the NJAG i n Texas. In the action pending there against the Department of State (i.e., the case f rom 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,

8 a Fifth Circuit motions panel expedited the appeal, with a concurrence by Judge Ho that again re qu ested 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 denie d such a request.”). Concurrent with the expedited appeal in the Fifth Circuit, Appellants filed a second motion to re transfer 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 con currence” 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 th at “the Fifth Circuit’s request may have been improvidently m ade,” 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 “t ransferred in its entir ety to the Dis trict of New Jersey,” the Fifth Circuit concluded that “[a]lthough this court ha s politely requested that the N ew Jersey district court return the case, we can do no more.” Id. at 493.

9 Meanwhile, litigation proceeded in the District of New Jersey. Wh ile 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. T he 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. Distri bu ted 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 Seco nd Transfer Opinion and the reassignment of this case —they cho se not to seek such relief.” Id. at *2. Accordingly, the District Court de nied reconsideration. On the merit s, the District Court granted th e 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 vio lations of the First Amendment, the Second Amendment, the Du e 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 c ontract. Because this appeal is limited to the District Court’s dismissal of Appellants’ First Amendment, Second Amendment, and Due Process claims, we likewise limit ou r discussion of the District Court’s decision to those claims.

10 Amendment challenge to the New Jersey Statute, which criminaliz ed the manufacture of 3D-printed arms without a license, because the complai nt 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. I d. at 2 60 - 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 con cluded might not be protected; (2) concluded that Appellants had not pleaded sufficient facts regarding the cod e’s expressiveness for the Court t o 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, i d. at 259, but Appellants elected to stand on their complaint. This timely appeal followed.

11 II. JURISDICTION AND STANDARD O F 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.4t h 662, 668 (3d Cir. 2022); In re Scheri ng Plough Corp. Intron/Temodar Consumer Class Action, 678 F.3d 235, 243 (3d Cir. 2012). On the other hand, we review the den ial of a motion to transfer under 28 U.S.C. § 1404(a) for abuse of discret ion. Danziger & De Llan o, 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.

12 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 eac h separately required retransfer and, alte rnatively, that transfer was appropriate under 28 U.S.C. § 1404(a). We disagree and address each of thes e arguments in turn. First, Ap pellants contend that they have a “clear and indisputable right to retransfer” under the law - of -the- case doctrine because of the Fifth Circuit’s ho lding 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 cou rt’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. 20 10)), it presupposes that the predecessor cou rt had jurisdiction over the matter when its decision issue d.

13 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 creat ed 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 it s 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 no t 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, bu t 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 do es 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 abdicat e h is individual judgment” on a q uestion 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

14 Western District of Texas, a request the New Jersey Distri ct 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 courtes y.” 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 a ny 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 distric t or division to which all parties have consented.” 28 U.S.C. § 1404(a). The NJAG d id not consent to retransferring the case to Texas. Thus, a s the movant, Appellants bear the burden of demonstrating the need for transfer, meaning they must show that the balancing of public and private interests ti lts 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 pract ical c onsiderations that make trial easy, expeditious, or inexpensive; (3) the court congestion in

15 the fora; (4) the local interest in deciding loc al controversies at home; (5) the pu blic poli cies of the fora; and (6) the fami liarity 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 pref erence; (2) where the claims arose; (3) the convenience to parties and witnesses; and (4) the location of books and r ecords. 2 Id. at 879. Here, the District Court conducted a methodical analysis of each of the enumerat ed factors, concluding that the private interest factors, as well as the pu blic interest factors regarding enforceability of the judgment, court congestion, and familiarity with applicable law were either in equ ipoise 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 controversie s at ho me. 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).

16 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 C ourt “base[d] its decision upon a clea rly 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 st anding to challenge the enforcement of a statute, a plaintiff “must

17 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 hypotheti cal.” 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 the ir asserted Second Amendment right to “self -manufacture firearms . . . free from any major regulation wh atsoever,” 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 i n any actual and concrete Se cond Amendment injury. As the District Court obse rved, 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

18 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 th at putative Second Amen dm ent right. 3 On appeal, Appell ants contend that they need no t 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 Con stitution’s ‘ right to make and acquire Arms. ’” Opening Br. 52 (qu oting App. 299). But “to be sufficiently particularized, an injury must affect the plaintiff in a personal and indivi dual way,” Finkelman v. Nat ’ l Football League, 810 F.3d 187, 193 (3d Cir. 2016) (citation modified), and nothi ng 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 do es 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 member s would have st anding 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).

19 result, Ap pellants do not have Article III standing for the ir 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 f or vagueness under the Due Process Clause. To recap, that provision bars the distribution of “digital instructions in the form of compute r-aided desi gn 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 statut e’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 vo id 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 U nited 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 dis agree for two reasons.

20 First, for du e process purposes, “perfect clarity and precise guidance have never been required even of regul ations 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. Specific ally, the statute regulates only the distribution of “digital instructions in the form of computer- aided design files” and “other co de or instructions stored and displayed in electronic format as a dig ital model.” N.J. Stat. Ann. § 2C:39- 9(l)(2). This precision exclu des the vast majority of extant code and file formats from its purview and provides “individuals and la w 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 narro ws 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 ordina ry intelligence fair notice of what is proscribed and does not in vite 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 characterizati on, of “engag [ing] in such programming, ” invokes a broader category

21 of conduct that includes acts reliant upon the subjective abilities of a given programmer. But the statute does not cover that bro ader category. It on ly 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 culpabilit y to. . . wholly subjective judgments without . . . narrowing context.” Id. But the New Jersey Statute does not suffer from such in determinacy. 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 qu estions 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 instance s, the problem of close cases “is addressed, not by the doctrine of vagueness, bu t by the requirement of proof beyond a reasonable doubt.” Id. So Appellants’ vagueness challenge f ails too.

22 D. First Amendment Cl aim 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 expressi on, see Platkin, 697 F. Supp. 3d at 258 n.11, and, as discussed above, the District C ourt rejected this argument, concluding that some functional code “may no t be speech,” id. at 258. Appellants’ argument before us appears unchanged, except to add that the al legations 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 th at 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 Principl es Generally speaking, code is “prepared by a programmer” a nd “ instruct[s] [a] computer to perform certain functions.” Advent Sys. Ltd. v. Unisys Corp., 925 F.2d 670,

23 674 (3d Cir. 1991). We often interact with it in t he 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, 12 29 -30 (3d Cir. 1986); se e 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 pro vides 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 ou tcome 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, a nd 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 protect ion. See, e.g., Texas v. Johnson, 491 U.S. 397, 404 (1989) (“[W]e have

24 rejected ‘the view that an ap parently 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 app lies.”); 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 hav e a facial claim to be considered with reference to the reasons underlying the decision to put those act s 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 Dep ar tment of Just ice, 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. Co rley, 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 Tho ugh vacated pending a reh earing that was ultimately withdrawn as moot, the Ninth Circuit’s decision in Bernstein is nonetheless illuminating.

25 See Wang, supra, at 1380, 1385- 89 (collecting cases and describing the development of “code i s speech” theory). And, consistent with that understanding, Appellants rel y on these cases for their argument here. Bu t fresh appraisal of their contents reveals a more complicated landsc ape that warrants our attention. The Ninth Circuit was the first to address the issue in Bernstein v. United States Depa rtment of Justice. There, a professor who wished to pu blish the code for his encryption algorithm brought a fac ial challenge to the export-control regulation requiring him to obtain a prepublication lice nse. 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 un til 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, no t 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

26 there was a risk of censorship, the court first had to d ecide “whether encryption source code is expression for First Amendment pu rposes.” Bernstein, 176 F.3d at 11 39 (quoting City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 759 (1988)). The op inions 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 expressi ve, 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 al so has the functional purpose of controlling computers and in that regard does not command prote ction under the First Amendment.” Id. at 1147 (Bright, J., concurring). Th e dissent, meanwhile, concluded that “ [e]ncryption source code is a bu ilding to ol, ” and al though 5 The court ultimately “e xp ress[ed] no opinion” on whether object code was, or could be, expres sive because the record contained no information regarding it s “expressive uses.” Bernstein v. U.S. Dep’t of Just., 176 F.3d 1 132, 1141 n.15 (9th Cir. 1999).

27 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 con cluded that source code is “protected by the First Amendment” because it “ is an expressive means for the exchange of informati on and ideas about computer programming.” Id. at 485. Unlike the Ninth Circ uit, the Sixth Circuit paid no mind to actual expressive use, but gav e primacy to the mere possibility of exp ressive 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 tha t in the same manner that “a musica l 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

28 permitted gover nm ent regulati on” through the applicati on of intermediate scrutiny. Id. at 484- 85. It remanded for application of that standard of review without deciding whether the regulations — or their ame ndments — 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 ob ject code for software designed to unlock DVD encryption protections, raised a First Amendment defense to the anti- trafficking p rovision of th e Digital Millenium Copyright Act. 273 F.3d at 43 9, 452 - 54. T he 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 whic h 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 int eraction between ‘programming commands as triggers and semiconductors as a conduit,’ even though communication, is not ‘speech’ within the meaning of the First Amendment. ” I d. 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 impli cates

29 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 cautione d that “[m]omentary intercession of human action” required to cause a code product to perform its fun ction 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 presum ed both source code and object code are protected by the First Amendment because they are able to convey i nformation comprehensible to a human. Id. at 446, 448. Its analysis went on to discern the appropriate standard of review, id. at 4 50 -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 i d. 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

30 programmer- to -programmer communications through code, it set aside any distinction between object and source code. Id. at 446. 2. Coverage Depends on Ex pressive Use We join our sister circuits in ho lding that computer code can be cov ered by the Firs t 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 com munication 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 co urt dr ew between code and musical scores to justify a blanket application of the First Amendment to code. See 209 F.3d at 484. Th at analo gy has intuitive appeal. A s described in Junger, a score cannot be understood without training, and it is the preferred means of communication amo ng musicians. But “[m]usic is one of the oldest forms of human expression,” Ward, 49 1 U.S. at 790, and there is no purely functional use of a music score. T he playing and compositi on of music are

31 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 fac t 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, su pra, 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 rec ognizes that the mere capacity to communicate does not transform physical conduct into protected speech. Id. The same is true in cyberspace. L aws 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 produ cts 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 deci sions in Bartnicki v. Vopper, 532 U.S. 514 (2001), and Sorrell v. IMS Health Inc., 564 U.S. 552

32 (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 ce rtain buyers and i ncluded dict um saying that “the creation and dissemination of information are speech within the meaning of the First Amendment.” 564 U.S. at 570. I n 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 la w operated as a form of viewpoint discrimination and because the government specifically intended to suppress marketing messages c onflicting with the goals of the state. 6 See id. at 57 1, 580. Bartnicki, for its part, addressed federal and state wiretapping statutes t hat 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 mu ch, 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).

33 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 C ourt 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 doctrin e. 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 r esemblance 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. The y 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 Do ctrine, 47 Sta n. L. Rev.

34 1249, 1254 (1995) (“Navigation charts do no t receive First Amendment pro tection . . . because we interpret them as speaking mono logically to their audience, as inviting their audience to assume a po sition 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 ob ject 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 communicat es. But, as explained below, we do not have occ asion to day to go beyond recognition of this fact -based and context-specific inquiry beca use, here, Appellants failed to plead any of these indicia of expressiveness that are necessary to trigger First Amendment co verage.

35 3. Appellants Ha ve Not Plead ed Fact s Sufficient to Assess Whether Defense Distr ibuted’s Code is Implicated by the Statute or Covere d by the First Amendment With this framework as our guide, we agree with the District Court that Appellants’ operative complaint lacks the information neces sary to determine whe ther the code d computer files Defense Distributed seeks to distribute are expressive or functional and, con sequently, whether it implicates the First Amendme nt. 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- a nd three-dimensional models of physical objects” bu t “ are ready for insertion into” 3D printers. App. 257 (emphasis add ed). And, “ [w]ith respect to the 3D -printing process es i n particular, CAD files and CAM files do not pro duce 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

36 ‘Liberator,’” “files concerning an assembly of the AR -15 rifle and magazine,” “files concerning an assembly of the AKM rifle and magazine,” “stereolightograph y (.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. 26 1. 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 possibili ty 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.’” As hcroft 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 si mply does no t prohibit or burden the distribution of things like “files about the National Firearms Act.” App. 261. But the complaint fails to identify, or provide informati on sufficient to infer, whi ch aspects of the digital firearms information are pr oscribed by the statute.

37 While the complaint l ists 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 con cerning” 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 abo ut the Liberator’s history or a comp arison 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 as suming the digital firearms information includes code whose distribution is limited by the New Jersey S tatute 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 al legations to assess whether that cod e is covered by the First A mendment. Appellants allege on ly that “digital firearms information . . . is an important expression of technical, scientific, artis tic, and po litical matter” and that “ [e]ach and every computer fil e at issue has these values in the abstract.” App. 258. But we must “disregard threadbare recitals of the element s of a cause of action, legal conclusions, and c onclusory statements. ” Oa kwood Lab ’ ys LLC v. T hanoo, 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

38 such conclusor y allegations, Appel lants’ complaint is left with nothing sufficient to assess whether th ere is a plausible entitlement to relief. It is not lost on us that CAD an d CAM files may not, as a technical matter, f it neatly within the source- code /object-code framework. After all, useful as it is for a First Amendment analysis of th at code and analogous files, different file format s could raise somewhat different issues, and here, we ha ve 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 do es not sufficiently explain the technical nature of those files. Indeed, the District Court provided Appellants with an opportunity to amend their complaint and incl ud e 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 pr ejudice. IV. CONCLUSION For the foregoi ng reasons, we will affirm the District Court ’s order.

39 Counsel for Appellants Charles R. Flores [ARGUED] F LORES L AW Joshua Blackman Counsel for Appellees Angela Cai [ARGUED] Timothy Sheehan O FFICE OF A TTORNEY G ENERAL OF N EW J ERSEY Counsel for Amicus Appellee County Prosecutors Association of New Jersey William P. Miller B ERGEN C OUNTY O FFICE OF P ROSECUTOR Counsel for Amicus Appellee Everytown for Gun Safety Support Fund Aaron C. Esty E VERYTOWN L AW