Volume 30

The Debate on Code as Speech: Defense Distributed v. Attorney General of New Jersey and the Infirmity of its Context-Specific Framework

Nathan Martin

This Comment examines the recent decision of the Third Circuit in Defense Distributed v. Attorney General of New Jersey, the most recent in a line of appellate cases considering the status of code under the First Amendment as possible speech. The context-specific framework of the Third Circuit announced in this case for determining whether code is covered by the First Amendment is criticized as contrary to intervening precedent of the Supreme Court promulgated between the bulk of earlier caselaw on the topic and today. This Comment contends that code is speech under Sorrell v. IMS Health pursuant to its discussion of the protection of information and its dissemination under the First Amendment. Some caselaw also indicates that courts may view the recipient or intended recipient of the code (human versus computer) as a factor which can bring code outside the reach of the First Amendment where a computer is the target of the communication. This too is considered in the Comment, with an argument that Sorrell and the focus in the First Amendment on protecting speech suggests that the speaker should be determinative in those instances, not the listener.