Distributed v. Platkin

• Docket Number: Civil Action No. 21-9867 (MAS) (TJB)
• Decision Date: 29 September 2023
• Citation: 697 F.Supp.3d 241
• Parties: DEFENSE DISTRIBUTED et al., Plaintiffs, v. Matthew J. PLATKIN, Attorney General of the State of New Jersey, Defendant.
• Court: U.S. District Court — District of New Jersey

697 F.Supp.3d 241

DEFENSE DISTRIBUTED et al., Plaintiffs, v. Matthew J. PLATKIN, Attorney General of the State of New Jersey, Defendant.

Civil Action No. 21-9867 (MAS) (TJB)

United States District Court, D. New Jersey

Filed September 29, 2023

Daniel L. Schmutter, Hartman & Winnicki, P.C., Ridgewood, NJ, Josh Blackman, Houston, TX, for Plaintiffs.

Tim Sheehan, Office of the New Jersey Attorney General, for Defendant.

OPINION

SHIPP, District Judge

This matter comes before the Court upon DefendantMatthew J. Platkin, the Attorney General of New Jersey's ("Defendant" or "State")Motion to Dismiss Defense Distributed ("DD") and Second Amendment Foundation, Inc.'s ("SAF")(collectively "Plaintiffs") Third Amended Complaint ("TAC").(ECF No. 181.)Plaintiffs opposed (ECF No. 184), and Defendant replied (ECF No. 185).After careful consideration of the parties' submissions, the Court decides Defendant's motion without oral argument pursuant to Local Civil Rule 78.1.For the reasons outlined below, Defendant's motion to dismiss is granted.Counts One through Seven are dismissed without prejudice, and Counts Eight and Nine are dismissed with prejudice.

I.BACKGROUND¹

A.Factual Background

i. The Parties

DD is a Texas corporation founded by Cody Wilson("Wilson").(TAC ¶¶ 4, 8, ECF No. 180.)Wilson currently serves as DD's director.(Id.¶ 9.)DD "exists to promote the Second Amendment's individual right to keep and bear [a]rms."(Id.¶ 30.)In service to this ideal, DD has published, is publishing, and intends to continue publishing digital firearms information to the American public.(Id.)SAF is a Washington-based non-profit membership organization.(Id.¶ 10.)"SAF promotes the right to keep and bear arms by supporting education, research, publications, and legal efforts about the Constitution's right to privately own and possess firearms and the consequences of gun control."(Id.¶ 11.)Some members of SAF seek out DD's digital firearms information, and some SAF members "seek to share their own computer files by utilizing [DD's] facilities."(Id.)

Defendant is the current New Jersey Attorney General("NJAG").(Id.¶ 13.)In his capacity as NJAG, Defendant is responsible for all of New Jersey's civil and criminal enforcement efforts.(Id.)

ii.Publishing of Digital Firearms Information

"Digital firearms information," as Plaintiffs use the term, is information in the form of coded computer files that acts as an "information store."²(Id.¶¶ 24, 25, 28.)This "digital firearms information" includes, in part, Computer Aided Design files ("CAD Files") and Computer Aided Manufacturing files ("CAM Files").(Id.¶¶ 26-27.)CAD Files are files primarily used for abstract design wherein a user can "construct and manipulate complex [two-dimensional ("2D") and three-dimensional ("3D")] digital models of physical objects."(Id.¶ 26.)CAD Files are not ready for insertion into object-producing equipment such as a 3D printer.(Id.)CAM Files, on the other hand, can be used to construct and manipulate 2D and 3D models of physical objects.(Id.¶ 27.)Unlike CAD Files, CAM Files are ready for insertion into object-producing equipment such as a 3D printer.(Id.)

From December 2012 to May 2013, DD published a substantial set of computer files with digital firearms information to its website, Defcad.com ("DEFCAD").(Id.¶ 41.)Any visitor to the website could download the published digital firearms information for free.(Id.)Some of the digital firearms information published via DEFCAD during this period included: (1) files concerning a single-shot firearm known as the "Liberator"; (2) files concerning a magazine for AR-15 rifles; and (3) diagrams of firearm components.(Id.)These computer files, in addition to other digital firearms information published by DD, were downloaded "millions of times" by site visitors.(Id.¶ 42.)

In July 2018, DD again published a substantial set of computer files with digital firearms information to DEFCAD and let any site visitor download the information for free.(Id.¶ 43.)This downloadable information included, in part: (1) files concerning an assembly of the AR-15 rifle and magazine; (2) SOLID WORKS part (".sldprt") files about firearm components; and (3) plain text files about firearm assembly methods.(Id.)These files were downloaded "hundreds of thousands of times."(Id.¶ 44.)

Later that year, between August and November 2018, DD again published a substantial set of computer files with digital firearms information.(Id.¶ 46.)This time, however, DD made its computer files available for mailed shipment on physical storage devices like USBs and SD cards.(Id.¶ 46.)To accomplish this mailed delivery, DD used an ecommerce platform on DEFCAD to facilitate all online orders, and then used the U.S. Postal Service ("USPS") to deliver the firearms information ordered by DD's website visitors.(Id.)It is unclear whether DD customers had to pay for the digital firearms information shipped in this physical form.(Seeid.)

On March 27, 2020, DD published a substantial set of computer files with digital firearms information via DEFCAD.(Id.¶ 49.)This group of files is still published on DEFCAD to date.(Id.¶ 55.)The files published during this period include: (1) original and legacy firearm models; (2) CAD Files; (3) CAM Files; and (4) blueprints and drawings (Id.¶ 49.)Unlike DD's prior periods of publication, however, the current publication period does not let DEFCAD visitors download files freely.(Id.¶ 50.)Instead, DEFCAD now utilizes secure end-to-end encryption, screens DEFCAD visitors that attempt to access files, deems some DEFCAD visitors ineligible for file distribution, prevents DEFCAD files from being made available outside the United States, and does not make any files available to New Jersey residents or persons who lack a federal firearms license.(Id.¶¶ 49-54.)

While DD's March 2020 computer files continue to be available on DEFCAD, all computer files published by DD prior to March 2020, while no longer available on DEFCAD, continue to be available on the Internet more generally.(Seeid.¶ 56.)This is because many recipients of DD information persistently republish DD files online via their own websites.(Id.)While DD ceased publishing new digital firearms information due to the current legal climate, DD intends to publish digital firearms information in the future when it is legal to do so.(Id.¶ 57.)Specifically, DD seeks to, in part, make all previously published digital firearms information, including the information published in 2012, 2013, 2018, and 2020, freely available to DEFCAD visitors.(Id.)DD also plans to publish additional CAD, CAM, and computer files with other digital firearms information in the future.(Id.)

iii.The NJAG's Alleged Censorship of DD's Speech

On July 26, 2018, the NJAG issued DD a formal cease-and-desist correspondence (the "Correspondence").(Id.¶ 120.)The Correspondence instructed DD to cease publishing digital firearms information "for use by New Jersey residents."(Id.¶ 121.)The Correspondence stated that the publishing of digital firearms information was a violation of New Jersey's public nuisance and negligence laws.(Id.)The Correspondence concluded that legal action would be brought against DD by August 1, 2018 if DD's efforts to publish digital firearms information did not cease.(Id.)

That same day, the NJAG issued a press release informing the public that if DD failed to comply with the NJAG's demands, legal action would follow.(Id.¶ 122.)The press release also took the position that posting digital firearms information online is "no different than driving to New Jersey and handing out hard-copy files on any street corner."(Id.)

On July 27, 2018, DD replied to the NJAG with a letter stating that all of DD's actions "are fully protected by the First Amendment" and that the NJAG's attempts to restrict DD's publications constitute an unconstitutional prior restraint in violation of the United States Constitution.(Id.¶ 123.)Nevertheless, DD stated in its letter that it would attempt to restrict files made available on the Internet to prevent them from being downloaded within New Jersey.(Id.)

On July 30, 2018, the NJAG contacted one of DD's Internet security service providers, DreamHost.(Seeid.¶¶ 124-26.)The NJAG informed DreamHost that DD planned to use DEFCAD in a manner that violated DreamHost's Acceptable Use Policy.(Id.¶ 127.)Moreover, the letter informed DreamHost that DD's publication of digital firearms information violates New Jersey law.(Id.)That same day, the NJAG sent Cloudflare, Inc.("Cloudflare"), another of DD's Internet security service providers, a copy of the Correspondence.(Id.¶ 128.)

On November 8, 2018, the New Jersey Legislature passed Senate Bill 2465, later codified at N.J. Stat. Ann. 2C:39-9(l)(2)(the "Challenged Statute").(Id.¶ 129;see alsoN.J. Stat. Ann. 2C:39-9(l)(2).)The law, in pertinent part, reads as follows:

[I]t is a second[-]degree crime for:

. . .

(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 program a [3D] printer to manufacture or produce a firearm, firearm receiver, magazine, or firearm component.

As used in this subsection: '[3D] printer' means a computer or computer-driven machine or device capable of producing a [3D] object from a digital model; and 'distribute' means to sell, or to manufacture, give, provide, lend, trade, mail, deliver, publish, circulate, disseminate, present, exhibit, display, share, advertise, offer, or make available via the Internet or by any other means, whether for pecuniary gain or not, and includes an

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