IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
DEFENSE DISTRIBUTED and SECOND
AMENDMENT FOUNDATION, INC.,
Plaintiffs,
v.
GURBIR GREWAL, in his official capacity as
New Jersey Attorney General; MICHAEL
FEUER, in his official capacity as Los Angeles
City Attorney; ANDREW CUOMO, in his
official capacity as New York Governor;
MATTHEW DENN, in his official capacity as
Attorney General of the State of Delaware;
JOSH SHAPIRO, in his official capacity as
Attorney General of Pennsylvania; and
THOMAS WOLF, in his official capacity as
Pennsylvania Governor,
Defendants.

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Case No. 1:18-CV-637-RP

Plaintiffs’ Motion for a
Preliminary Injunction

 TABLE OF CONTENTS
Page
SUMMARY OF THE ARGUMENT ............................................................................................. 1
STATEMENT OF THE CASE....................................................................................................... 4
I.

Defense Distributed publishes digital firearms information. .............................................. 4
A. Defense Distributed publishes digital firearms information via the internet................ 5
B. Defense Distributed publishes digital firearms information via the U.S. mail............. 7
C. Defense Distributed offers and advertises digital firearms information....................... 8

II.

New Jersey is censoring Defense Distributed with both civil and criminal law. ............... 9
A. New Jersey’s civil actions erect an informal system of prior restraints. ...................... 9
B. New Jersey’s new speech crime targets Defense Distributed. ................................... 10

ARGUMENT ............................................................................................................................... 13
I.

The Court should enjoin enforcement of the Section 3(l)(2) speech crime. ..................... 13
A.

II.

Plaintiffs will likely succeed on the merits of the First Amendment claim. ......... 13
1.

Content-based censorship makes Section 3(l)(2) unconstitutional. .......... 14

2.

Overbreadth makes Section 3(l)(2) unconstitutional. ............................... 17

3.

A missing scienter element makes Section 3(l)(2) unconstitutional. ........ 20

B.

Plaintiffs will likely succeed on the merits of the Due Process Clause claim. ..... 20

C.

Plaintiffs will likely succeed on the merits of the Commerce Clause claim. ....... 22

D.

Plaintiffs will likely succeed on the merits of the Supremacy Clause claim. ....... 23
1.

CDA Section 230 preempts Section 3(l)(2). ............................................. 23

2.

The State Department’s authority preempts Section 3(l)(2). .................... 24

E.

Plaintiffs will suffer irreparable harm in the absence of immediate relief. .......... 25

F.

The balance of equities favors the Plaintiffs and a preliminary injunction will
serve the public interest. ....................................................................................... 27

The Court should enjoin New Jersey’s civil enforcement efforts..................................... 27

CONCLUSION ............................................................................................................................. 28
CERTIFICATE OF SERVICE ..................................................................................................... 30

i

 Plaintiffs Defense Distributed and the Second Amendment Foundation, Inc. (“SAF”) move
for a preliminary injunction against Defendant Gurbir Grewal, the New Jersey Attorney General.
SUMMARY OF THE ARGUMENT
In November 2018, the State of New Jersey enacted Senate Bill 2465, a new criminal law.
Section 3(l)(2) criminalizes constitutionally protected speech that Defense Distributed has engaged
in before and desires to engage in again soon. Defense Distributed now refrains from engaging in
that speech for fear of prosecution by Defendant Gurbir Grewal, the New Jersey Attorney General.
Section 3(l)(2) does not address conduct. Rather, it addresses a specific kind of speech:
digital firearms information. The new law criminalizes “digital instructions” that “may be used”
to “produce a firearm” with a “three-dimensional printer.” Section 3(l)(2) makes it a crime to
“distribute” that speech “to a person in New Jersey” (except for manufacturers and wholesalers).
The law provides a nearly limitless definition of “distribute”: “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 agreement or attempt to distribute.”
This law is unconstitutional. It is an extreme act of content-based censorship that has no
hope of satisfying strict scrutiny because it is ineffective, overbroad, and underinclusive all at once.
It punishes speakers worldwide not because the speech itself does any harm, but because of
speculation that the speech may sometimes bear a contingent and indirect relationship to bad acts.
No medium escapes this new crime. Section 3(l)(2) outlaws speech delivered “by any
means.” It expressly criminalizes the sharing of information “via the Internet” and also expressly
criminalizes sharing via standard postal “mail.” The crime also extends to rudimentary in-person
interactions such as “display[ing],” “present[ing],” and “giv[ing]” information. New Jersey’s new
speech ban sweeps in every way that people might possibly share these ideas with one another.

 All kinds of digital firearms information are censored by this new speech crime. The ban
covers both “computer-aided design files” and “other code or instructions stored and displayed in
electronic format as a digital model.” How the information is actually used is irrelevant. The
crime applies if information “may be used” by a third party in certain activities. The speech’s mere
potential relationship to that conduct is adequate for a conviction. It matters not how unlikely that
potentiality may be, or whether the speaker had any specific knowledge or intent. In addition, the
new law makes it a crime to merely “offer” or “advertise” or “make available” the information.
For years, Defense Distributed has done what Section 3(l)(2) now criminalizes: openly
distribute digital firearms information to the public domain through both the internet and the mail.
In addition, Defense Distributed made offers and advertisements about both distribution methods.
New Jersey is targeting Defense Distributed with the new crime. At the law’s signing
ceremony, the Attorney General singled out Defense Distributed founder Cody Wilson by name.
He said that this law must be enacted because of “a Texan named Cody Wilson” and “his
supporters,” who had “take[n] advantage of loopholes” in the past and are “still trying to release
these codes.” Section 3(l)(2) was made “to stop them” and to “stop the next Cody Wilson.” With
his new speech crime “tool” in hand, New Jersey’s Attorney General threatened Defense
Distributed and everyone else that shares digital firearms information: “we will come after you.”
Irreparable harm of the highest constitutional order will occur if Section 3(l)(2) is enforced
against Defense Distributed and/or SAF’s members. But the harm is not just prospective. With
each passing day, Section 3(l)(2) causes irreparable harm by chilling constitutionally protected
speech and triggering self-censorship. Plaintiffs are not the only ones so injured. Every American
who dares speak to a fellow citizen about modern firearm production under the First and Second
Amendments suffers because of this law’s effort to mute all digital firearms information.

2

 In this action, Plaintiffs are likely to succeed in having Section 3(l)(2) held unconstitutional
and its enforcement permanently enjoined. This is true both as to the First Amendment actions
and as to those brought under the Due Process Clause, Commerce Clause, and Supremacy Clause.
Until then, the Court should preserve the status quo and prevent irreparable harm by enjoining
New Jersey’s enforcement Section 3(l)(2) against the Plaintiffs.
In addition to its new criminal law, New Jersey’s Attorney General has for months been
acting to censor the Plaintiffs under the color of state civil laws. He sent cease-and-desist letters
to Defense Distributed, sued Defense Distributed in state and federal court, and threatened Defense
Distributed’s service providers in an effort to shut down the speech indirectly. Through these civil
legal actions, New Jersey’s Attorney General has attempted to impose a prior restraint that is just
as violative of the First Amendment as is Section 3(l)(2)’s new speech crime. The New Jersey
Attorney General’s civil actions are also bound to be held unconstitutional in this action. They too
should be enjoined until the Court issues a final judgment stopping this censorship for good.
“The right to think is the beginning of freedom, and speech must be protected from the
government because speech is the beginning of thought.” Ashcroft v. Free Speech Coal., 535 U.S.
234, 253 (2002). Hence, a “law imposing criminal penalties on protected speech is a stark example
of speech suppression.” Id. at 244. The Constitution is no less offended by suppressive actions
that take the form of “informal sanctions.” Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 67 (1963).
Both kinds of suppression are at issue here and both deserve to be halted immediately.
The New Jersey Attorney General’s effort to abridge the First Amendment for the sake of
muting the Second Amendment is unprecedented and unconstitutional. By the authority of 42
U.S.C. § 1983 and Ex parte Young, 209 U.S. 123 (1908), the Court should issue a preliminary
injunction against the New Jersey Attorney General and stop his unlawful efforts to ban the free
exchange of digital firearms information that belongs in the public domain.

3

 STATEMENT OF THE CASE
Plaintiffs’ First Amended Complaint states the basic facts. Doc. 23 (hereinafter “FAC”).
Plaintiffs adopt that pleading here by reference. See Fed. R. Civ. P. 10(c).1 Exhibits are submitted
by Plaintiffs’ Motion for a Preliminary Injunction Appendix in order, such that Exhibit 1 is the
Appendix’s Attachment #1, Exhibit 2 is the Appendix’s Attachment #2, and so forth.
I.

Defense Distributed publishes digital firearms information.
This action begins where the Court left off in Defense Distributed v. United States

Department of State, No. 1:15-CV-372-RP (W.D. Tex.) (hereinafter Defense Distributed I). That
case concerned whether federal law lets the State Department halt Defense Distributed’s online
publication of certain digital firearms information. See FAC ¶¶ 27-39.
Plaintiffs and the State Department settled Defense Distributed I by entering into a
Settlement Agreement, Ex. 14, which, among other things, obligates the State Department to alter
certain regulations and grant the Defense Distributed I Plaintiffs—including Defense Distributed
and SAF—a federal license to freely publish digital firearms information. See FAC ¶¶ 42; Ex. 26
¶ 16-17. The State Department did so in July by modifying the regulations, Ex. 16, and issuing
the license, Ex. 15.2

1

This motion also sets forth facts occurring after the complaint’s filing, which should be accounted
for even if pleadings need to be amended later. See 11A Charles Alan Wright & Arthur R. Miller
et al., Federal Practice & Procedure § 2949 & nn. 5-6 (3d ed. West 2018); see also Fed. R. Civ. P.
15. The Court should also employ Federal Rule of Evidence 201 to take judicial notice of facts
such as other courts’ dockets, see Exs. 4, 13, 17, 19, 20; Orabi v. Att’y Gen. of the U.S., 738 F.3d
535, 537 & n.1 (3d Cir. 2014), and the contents of pertinent internet websites, see Exs. 6, 27, 29,
30-41, 49; see United States v. Flores, 730 F. App’x 216, 221 n.1 (5th Cir. 2018) (unpublished)
(Haynes, J., concurring); Kitty Hawk Aircargo, Inc. v. Chao, 418 F.3d 453, 457 (5th Cir. 2005);
Helen of Troy, L.P. v. Zotos Corp., 235 F.R.D. 634, 640 (W.D. Tex. 2006).
2

The Department of Justice had long taken the position that such a censorship regime would be
unconstitutional. See U.S. Dep’t of Justice Office of Legal Counsel (“OLC”), Mem. to Dr. Frank
Press, Science Advisor to the President, on the Constitutionality Under the First Amendment of
ITAR Restrictions on Public Cryptography (May 11, 1978) (Ex. 42); OLC, Mem. for the Office
of Munitions Control, Department of State on the Constitutionality of the Proposed Revision of
4

 The regulatory changes and license that resulted from Defense Distributed I may be
sufficient to establish the Plaintiffs’ right to share the digital firearms information at issue here.
But as a matter of law, they are not necessary. The Constitution guarantees the Plaintiffs’ right to
engage in the speech at issue. The Plaintiffs can legally do so now regardless of whether the State
Department acknowledges that right with a regulatory modification and/or license.3
A.

Defense Distributed publishes digital firearms information via the internet.

Defense Distributed has published digital firearms information to the internet’s public
domain for lengthy periods of time on multiple occasions. See FAC ¶¶ 1, 2, 10, 11, 31, 53-55.
Indeed, doing so is Defense Distributed’s core mission. See Ex. 26 ¶ 4; Ex. 23 ¶ 2. The nature of
the digital firearms information that Defense Distributed has published is well-documented. See
FAC ¶¶ 30-34; Ex. 26 ¶¶ 4-11, 19-20, 26-27; Ex. 23 ¶¶ 3, 8; Ex. 12; Ex. 6 at 1-2; Ex. 13 ¶¶ 25, 36,
44-45; Ex. 534; Dkt. 57 at 2; Def. Distributed v. United States Dep't of State, 838 F.3d 451, 461
(5th Cir. 2016) (Jones, J., dissenting).

the International Traffic in Arms Regulations (July 1, 1981) (Ex. 43); OLC, Mem. for the Director,
Capital Goods Production Materials Division, Dep’t of Commerce on the Constitutionality of the
Proposed Revision of the International Traffic in Arms Regulations (July 28, 1981) (Ex. 44); OLC,
Mem. for Davis R. Robinson, Legal Advisor, Dep’t of State, on Revised Proposed International
Traffic in Arms Regulations (ITAR) (July 5, 1984) (Ex. 45); U.S. Dep’t of Justice, Report on the
Availability of Bombmaking Information (1997) (Ex. 46).
3

In State of Washington v. United States Department of State, No. 2:18-cv-1115-RSL (W.D.
Wash.), New Jersey and other states are suing the State Department to invalidate the regulatory
modification and license issuance that occurred in July 2018. The case concerns whether the State
Department complied with the Administrative Procedure Act in performing those actions. The
case’s preliminary injunction applies only to the State Department; it does not order Defense
Distributed to do or not do anything. Ex. 20 at 25. Even if the states in that case ultimately prevail,
the State Department will not be barred from complying with the Settlement Agreement. Success
for the states in the Washington action means only that the State Department can simply re-perform
the regulatory modification and license issuance in accordance with the APA. Indeed, the
Settlement Agreement requires the government to perform its obligations thereunder in a manner
“authorized by law (including the Administrative Procedure Act).” Ex. 14 ¶ 1(a).
4

Plaintiffs’ Exhibit 53 is the document filed in Defense Distributed I as docket entry number 37-5.
In Defense Distributed I, the Court granted a motion to file docket entry number 37-5 under seal,
5

 First, Defense Distributed published digital firearms information to the internet’s public
domain via its websites (known as “DEFCAD”) in 2012, before Defense Distributed I began. See
FAC ¶ 31; Ex. 26 ¶¶ 8-15; Ex. 23 ¶ 3; Ex. 4 at 15-16, ¶¶ 13-16. This publication period lasted
from December 2012 to May 2013. See id.
Second, Defense Distributed published digital firearms information to the internet’s
domain via DEFCAD in 2018, after settling Defense Distributed I. See FAC ¶ 53-54; Ex. 26 ¶¶
16-25. This publication period lasted from July 27, 2018, to July 31, 2018. See id.
The digital firearms information that Defense Distributed published on the internet—
before and after Defense Distributed I—continues to be independently republished on the internet.
See FAC ¶¶ 54-55. To this day, the files that Defense Distributed published on DEFCAD continue
to be republished for free download by independent third parties on websites that can be located
by a simple Google search. See Ex. 24 at 1-2; Ex. 8 at 1; Ex. 28 at 1; Ex. 27 at 10.
Without question, Defense Distributed seriously desires to continue publishing digital
firearms information on its website to the internet’s public domain. See FAC ¶ 3; Ex. 26 ¶¶ 3-7,
20, 21, 23, 32; Ex. 27 at 3-5. But Defense Distributed refrains from doing so now for fear of being
punished by states like New Jersey. See FAC ¶ 116; Ex. 26 ¶¶ 28-32.
The recipients of Defense Distributed’s online publications include SAF’s members, who
refrain from receiving and republishing Defense Distributed’s online digital firearms information
for fear of being prosecuted by states like New Jersey. See FAC ¶¶ 1, 13; Ex. 21 ¶¶ 7-9; Ex. 22
¶¶ 6-9. Once those threats cease, SAF’s members intend to resume receiving information from
Defense Distributed and republishing it. See FAC ¶¶ 13; Ex. 21 ¶¶ 7-9; Ex. 22 ¶¶ 6-8.

and it remains so sealed. The document should remain under seal now for the same reasons that
it was placed under seal originally. In a separate filing in this case, Plaintiffs are moving to have
the document filed under seal in this docket. Until that motion is ruled upon, Plaintiffs request
that the Court take judicial notice of the document filed in Defense Distributed I as docket entry
number 37-5 and treat it as this action’s Exhibit 53. See Fed. R. Evid. 201.
6

 B.

Defense Distributed publishes digital firearms information via the U.S. mail.

Apart from online publications, Defense Distributed has spent the last several months
distributing digital firearms information by U.S. mail. See FAC ¶ 1, 10-11. In State of Washington
v. United States Department of State, No. 2:18-cv-1115-RSL (W.D. Wash.), the State Department
and the State of New Jersey expressly conceded that Defense Distributed has a right to do just
that—to mail digital firearms information without violating any law.5
During the Washington action’s preliminary injunction hearing, counsel for the State
Department stated that “even if the Court were to grant [New Jersey and the other plaintiff states]
every ounce of relief that they seek in this case, Defense Distributed could still mail every
American citizen in the country the files that are at issue here.” Ex. 19 at 27:12-15. At that same
hearing, counsel for New Jersey’s Attorney General agreed that, apart from internet publication,
Defense Distributed had a right to distribute digital firearms information via the mail or otherwise
“hand them around domestically” without violating any law. Ex. 19 at 23:5-9.
Thus, ever since both the State Department and New Jersey acknowledged Defense
Distributed’s right to do so legally, Defense Distributed has been distributing digital firearms
information files by mailing them via the U.S. Postal Service.

See Ex. 26 ¶¶ 5-7, 26-27.

Specifically, “Defense Distributed sold digital firearms information by using an ecommerce
platform on DEFCAD to facilitate the transaction and using the U.S. Postal Service as its means
of delivering the information.” Id. ¶ 26. After “customers entered an order using DEFCAD’s
online ecommerce platform,” Defense Distributed put the “information on a USB drive or SD card
and mailed the drive or card to . . . customers via the U.S. Postal Service.” Id. ¶ 27.

5

Cf. Def. Distributed v. U.S. Dept. of State, 121 F. Supp. 3d 680, 695 (W.D. Tex. 2015) (“As [the
State Department] point[s] out, Plaintiffs are free to disseminate the computer files at issue
domestically in public or private forums, including via the mail or any other medium that does not
provide the ability to disseminate the information internationally.”).
7

 For Defense Distributed, SAF, and anyone else interested in digital firearms information,
the postal mail alternative to internet publication is not an “adequate substitute[].” City of Ladue
v. Gilleo, 512 U.S. 43, 56 (1994). Internet distribution is essential for many reasons. Most
importantly, it is essential because it enables the collaborative development of digital firearms
information in the public forum now known as the “Open Source Community.”6
Defense Distributed refrains from continuing to distribute digital firearms information via
the mail for fear of being punished by states like New Jersey. Once that threat ceases, Defense
Distributed intends to continue engaging in this speech, see FAC ¶¶ 3, 116; Ex. 26 ¶¶ 4-7, 20, 23,
28-32, and SAF’s members intend to continue receiving it, benefitting from it, and republishing it,
Ex. 21 at ¶¶ 7-9; Ex. 22 ¶¶ 6-9.
C.

Defense Distributed offers and advertises digital firearms information.

In addition to its actual publications via the internet and mail, Defense Distributed also
offers and advertises the distribution of digital firearms information to potential recipients. See
FAC ¶ 1, 10; Ex. 26 ¶¶ 6, 26-27. These efforts include advertisements and offers on DEFCAD
itself, participation in trade shows, e-mail advertisements, and media advertising efforts. Ex. 26
¶¶ 6, 26, 32; Ex. 9 at 2.

6

The “open-source community” is a “loosely organized, ad-hoc community of contributors from
all over the world who share an interest in meeting a common need, ranging from minor projects
to huge developments, which they carry out using a high-performance collaborative development
environment, allowing the organizational scheme and processes to emerge over time.” Javier
Soriano, Genovea López & Rafael Fernández, Collaborative Development Environments, in
Goran D. Putnik & Maria M. Cunha, I Encyclopedia of Networked and Virtual Organizations at
231 (2008) (Ex. 50). “The concept represents one of the most successful examples of highperformance collaboration and community-building on the Internet.” Id; see also Georg von
Krogh, Open-Source Software Development, 44 MIT-Sloan Mgmt. Rev. 3, 14 (2003) (Ex. 47);
Eric S. Raymond, The Cathedral and the Bazaar, 3 First Monday 3 (1998),
https://firstmonday.org/article/view/578/499 (Ex. 48).

8

 Out of fear of prosecution by New Jersey, Defense Distributed refrains from continuing to
offer and advertise its digital firearms information to persons in New Jersey. Ex. 26 ¶ 32. Once
that threat ceases, Defense Distributed plans to resume offering and advertising its willingness to
engage in the speech at issue. See Ex. 26 ¶¶ 4-7, 29-32.
II.

New Jersey is censoring Defense Distributed with both civil and criminal law.
New Jersey is engaged in a concerted and deliberate effort to stop Defense Distributed’s

expression of digital firearms information. See FAC ¶¶ 75-87. The censorship effort has taken
three forms. First, New Jersey is attempting to unsettle the resolution of Defense Distributed I.
See FAC ¶¶ 56-63; Exs. 7-8. Second and third, New Jersey is censoring Defense Distributed
directly under the color of both state civil and criminal law.
A.

New Jersey’s civil actions erect an informal system of prior restraints.

Apart from and before the enactment of New Jersey’s new criminal statute, the New Jersey
Attorney General has spent months censoring Defense Distributed with a campaign of civil legal
actions that amount to a prior restraint. He inflicts this system of informal censorship upon both
Defense Distributed itself and the third parties that service Defense Distributed’s website.
This campaign began on July 26, 2018, when the New Jersey Attorney General sent
Defense Distributed a cease-and-desist letter. Ex. 3. That cease-and-desist letter claimed that
publishing and republishing files on the internet violated New Jersey’s “public nuisance and
negligence laws.” Id. at 1. Then it commanded Defense Distributed to stop publishing digital
firearms information or else: “If you do not halt your efforts to proceed with publication, I will
bring legal action against your company. . . .” Ex. 3 at 1.
Four days later, the Attorney General sued Defense Distributed in a New Jersey state court
and sought an ex parte temporary restraining order to prevent Defense Distributed’s publication
of digital firearms information. See FAC ¶ 81; Ex. 4; see also Exs. 9-10; Dkt. 57 at 4 & n.2. This

9

 action, a quintessential prior restraint, was removed to federal court and administratively
terminated. Ex. 51.
Additionally, New Jersey’s Attorney General is waging an external campaign to silence
Defense Distributed’s speech by sending coercive legal letters to Defense Distributed’s interactive
computer service providers. See FAC ¶¶ 82-87. First, the Attorney General urged Dreamhost, an
internet hosting provider, to terminate its service contract with Defense Distributed by deploying
threats, coercion, and intimidation—all under the banner of “public nuisance law.” Ex. 5 at 1.
Second, the New Jersey Attorney General delivered a similarly threatening, coercive, and
intimidating “Legal Request” to Cloudflare, an internet security provider. Ex. 5 at 3.
The New Jersey Attorney General’s own press releases promote these activities as part of
a unified and intentional campaign. The cease-and-desist letters, the intimidation of service
providers, and the commencement of civil actions are all part of the New Jersey Attorney General’s
plan to stop Defense Distributed “from publicly releasing computer files.” Ex. 6 at 1.
B.

New Jersey’s new speech crime targets Defense Distributed.

Senate Bill 2465 amplified New Jersey’s existing regime of unconstitutional civil actions
by creating a new speech crime. The Governor signed Senate Bill 2465 at a public ceremony,
flanked by the Attorney General and the bill’s leading legislative sponsor. The statements
delivered at this event prove that New Jersey’s new speech crime was enacted for the purpose of
censoring—and eventually, selectively prosecuting—Defense Distributed. 7

7

In addition to the event’s transcript, Ex. 2, the government’s version of the video is at
https://www.youtube.com/watch?v=lJiQ6iFH5x4 and another copy of the same video is available
at https://files.beckredden.com/dl/bKzFup6UmV.

10

 First, the Governor called Senate Bill 2465 part of the very same “fight” and very same
“efforts” as the cease-and-desist letter that the Attorney General sent to Defense Distributed:
The Attorney General has been a national leader in this fight. Last June he issued
a cease and desist letter to the companies that deal in ghost guns, saying explicitly
that New Jersey is off limits to them. He joined likeminded attorneys general in
successfully stopping in federal court the release of blueprints that would have
allowed anyone with a computer and access to a 3D printer the ability to build their
own, untraceable firearm. This law that we’re going to sign today further backs
up his efforts, and I thank him for all that he has done. Thank you, Gurbir.
Ex. 2 at 7:15-8:1 (emphasis added). The Governor also praised the Attorney General’s campaign
of “naming and shaming” Defense Distributed and other companies that engage in constitutionally
protected activity. Id. at 9:7.
Next, Attorney General Grewal called out Defense Distributed founder Cody Wilson by
name. He said that he needed “stronger tools to stop them” because “a Texan named Cody
Wilson,” Defense Distributed, and its supporters—i.e., the Second Amendment Foundation—were
“not relenting” and “still trying to release these codes online.” Id. at 12:6-12:24.
Later in the ceremony, the Attorney General called out Defense Distributed founder by
name again. After tacitly admitting that prior law did not make Defense Distributed’s expression
illegal, he said that the new criminal law was being enacted “to stop the next Cody Wilson - to
fight the ghost gun industry”:
[B]ad actors were trying to take advantage of loopholes because no law squarely
addressed printable guns or ghost guns. So we had to rely on other laws, like our
public nuisance law or our assault weapons law, to fight back. Now don’t get me
wrong: Those laws are important and they’re great tools, and they helped us stop
the spread of these dangerous, untraceable weapons. But a law right on point
strengthens law enforcement’s hand even more.
And so today, there is no question that printable guns and ghost guns are deadly,
and selling them in New Jersey is illegal. And that’s why I’m so proud to support
Governor Murphy’s efforts and the legislature’s efforts to close those loopholes, to
stop the next Cody Wilson, to fight the ghost gun industry, and to regulate the next
dangerous gun models before they spread into our communities.
Id. at 14:8-25 (emphasis added).

11

 Finally, Attorney General Grewal promised that New Jersey intends to “come after”
“anyone who is contemplating making a printable gun” and “the next ghost gun company.” Id. at
15:1-11. A press release further touted the enforcement threats. Ex. 52.
New Jersey’s Governor signed Senate Bill 2465 into law at the end of that ceremony. Ex.
1, S. 2465, 218th Leg., Reg. Sess., 2018 NJ Sess. Law Serv. Ch. 138 (N.J. 2018) (hereinafter “SB
2465”) (Ex. 1); see Dkt. 57 at 3. The law took effect immediately. SB 2465 § 4.
Section 3(l)(2) of SB 2465 criminalizes speech about firearms. Neighboring provisions
criminalize conduct. But Section 3(l)(2) imposes a freestanding prohibition on speech; its
operation does not depend on the previous criminal acts. Speech and speech alone is the sole
ingredient of the Section 3(l)(2) crime:
l. Manufacturing or facilitating the manufacture of a firearm using a
three-dimensional printer. In addition to any other criminal penalties provided
under law it is a third 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
three-dimensional printer to manufacture or produce a firearm,
firearm receiver, magazine, or firearm component.
As used in this subsection: “three-dimensional printer” means a computer or
computer-driven machine or device capable of producing a three-dimensional
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 agreement or attempt to
distribute.
SB 2465 § 3(l)(2). A conviction entails at least three to five years of imprisonment, see N.J. Stat.
2C:43-6(a)(3); N.J. Stat. 2C:43-7(a)(4) (sometimes five to ten), and a fine of up to $15,000, see
N.J. Stat. 2C:43-3(b)(1).

12

 In this way, New Jersey has delivered a worldwide censorship edict by denying the
Plaintiffs’ right to share digital firearms information on the internet, via the mail, and via any other
conceivable method. The American public now has no right to access and share the digital
information that is indispensable to any true engagement in the technical discussions, mechanical
engineering, and other development activities that inhere in modern private firearms ownership.
ARGUMENT
Plaintiffs move for a preliminary injunction against Defendant Gurbir Grewal in his official
capacity as New Jersey Attorney General. The Court should enjoin the New jersey Attorney
General from (1) enforcing Section 3(l)(2) of Senate Bill 2465 against the Plaintiffs, and (2) using
cease-and-desist letters and other civil legal actions to stop the Plaintiffs’ publication of digital
firearms information. See 42 U.S.C. § 1983; Ex parte Young, 209 U.S. 123 (1908).
“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on
the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the
balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Nat.
Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); see Tex. v. Seatrain Int'l, S.A., 518 F.2d 175, 180
(5th Cir. 1975) (“[N]one of the four prerequisites has a fixed quantitative value. Rather, a sliding
scale is utilized, which takes into account the intensity of each in a given calculus.”). With respect
to both the criminal and civil censorship actions at issue here, the test for injunctive relief is met.
I.

The Court should enjoin enforcement of the Section 3(l)(2) speech crime.
A.

Plaintiffs will likely succeed on the merits of the First Amendment claim.

The complaint pleads that New Jersey has violated and is threatening to violate 42 U.S.C.
§ 1983 by acting, under color of state law, to abridge the Plaintiffs’ First Amendment freedoms.
See FAC ¶¶ 120-30. With respect to the enforcement of Section 3(l)(2), Plaintiffs are likely to
succeed on the merits of the First Amendment claim for at least three independent reasons.

13

 Before addressing those arguments, the Court should hold that the Plaintiffs’ distribution
of the digital firearms information at issue qualifies as First Amendment speech. In accordance
with the complaint, see FAC ¶¶ 3, 10, 11, 30-34, proof shows that the digital firearms information
at issue here qualifies as First Amendment speech under all of the applicable modern precedents.8
1.

Content-based censorship makes Section 3(l)(2) unconstitutional.

Section 3(l)(2) is a content-based speech restriction. Facially, the law is content-based
because it criminalizes “digital instructions” that “may be used to program a three-dimensional
printer to manufacture or produce a firearm, firearm receiver, magazine, or firearm component.”
SB 2465 § 3(l)(2); see Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218, 2227 (2015); Nat’l Inst. of
Family & Life Advocates v. Becerra (“NIFLA”), 138 S. Ct. 2361, 2371 (2018). The law’s
justification also makes it content-based because its enactors created the crime to punish the idea
being conveyed—digital firearm information. See Ex. 2; Ward v. Rock Against Racism, 491 U.S.
781, 791 (1989); Boos v. Barry, 485 U.S. 312, 320-21 (1988).

8

Compare Ex. 26 ¶¶ 5-10, 19-20, 26-27 (Defense Distributed’s Director explaining the nature of
exemplary digital firearms information), Ex. 53 (same), and Ex. 25 (industry expert explaining 3D
printing processes), with Sorrell v. IMS Health Inc., 564 U.S. 552, 570 (2011) (“[T]he creation and
dissemination of information are speech within the meaning of the First Amendment.”), Bartnicki
v. Vopper, 532 U.S. 514, 526-27 (2001) (similar), Junger v. Daley, 209 F.3d 481, 482 (6th Cir.
2000) (“Because computer source code is an expressive means for the exchange of information
and ideas about computer programming, we hold that it is protected by the First Amendment.”),
Universal City Studios, Inc. v. Corley, 273 F.3d 429, 449 (2d Cir. 2001) (“[C]omputer code, and
computer programs constructed from code can merit First Amendment protection.”), Bernstein v.
U.S. Dep’t of State, 922 F. Supp. 1426, 1436 (N.D. Cal. 1996) (“For the purposes of First
Amendment analysis, this court finds that source code is speech.”); see also Brief of Amicus
Curiae Electronic Frontier Foundation in Support of Plaintiffs-Appellants, Defense Distributed v.
U.S. Dep’t of State, 2015 WL 9267338, at * 11, 838 F.3d 451 (5th Cir. 2016) (“The functional
consequences of speech are considered not as a bar to protection, but to whether a regulation
burdening the speech is appropriately tailored.”); Def. Distributed v. U.S. Dept. of State, 121 F.
Supp. 3d 680, 692 (W.D. Tex. 2015) (“Plaintiffs made clear at the hearing that Defense Distributed
is interested in distributing the files as ‘open source.’ That is, the files are intended to be used by
others as a baseline to be built upon, altered and otherwise utilized. Thus, at least for the purpose
of the preliminary injunction analysis, the Court will consider the files as subject to the protection
of the First Amendment.”).
14

 As a content-based speech restriction, the Constitution renders Section 3(l)(2)
presumptively invalid; it is enforceable only if New Jersey “prove[s] that the restriction furthers a
compelling interest and is narrowly tailored to achieve that interest.” Reed, 135 S. Ct. at 2231.
New Jersey cannot meet that burden for at least four reasons.
First, Section 3(l)(2) does not survive strict scrutiny because it does not advance a
compelling state interest. The holding of Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002),
applies directly to this case: “The mere tendency of speech to encourage unlawful acts is not a
sufficient reason for banning it.” Id. at 253. The government lacks a compelling state interest and
“may not prohibit speech” if the speech merely “increases the chance an unlawful act will be
committed ‘at some indefinite future time.’” Id. A mere “remote connection” between speech and
a third party’s criminal conduct is not enough. Id. “Without a significantly stronger, more direct
connection, the Government may not prohibit speech on the ground that it may encourage [thirdparties] to engage in illegal conduct.” Id. Under Ashcroft, New Jersey lacks a compelling state
interest in banning Plaintiffs’ expression of digital firearms information.
Second, Section 3(l)(2) does not meet strict scrutiny’s narrow tailing requirement because
of plausible, less restrictive alternatives. New Jersey could achieve its ends by banning only the
harmful conduct at issue—not speech that is merely and only sometimes remotely associated with
that conduct. See Bartnicki v. Vopper, 532 U.S. 514, 529 (2001) (“The normal method of deterring
unlawful conduct is to impose an appropriate punishment on the person who engages in it.”).
Indeed, other provisions of SB 2465 do just that by criminalizing the possession of certain firearms.
Third, Section 3(l)(2) does not survive strict scrutiny because it is substantially
underinclusive. While it criminalizes the “distribution” of digital firearms information, Section
3(l)(2) does nothing about the possession of that same information. While it criminalizes speech
regarding “firearms,” Section 3(l)(2) does nothing about speech regarding other dangerous

15

 instrumentalities such as poison and bombs. And while it criminalizes speech by normal people,
Section 3(l)(2) does nothing about the speech of firearms manufacturers or wholesalers. The
statute ignores these and many other appreciable sources of the problem it supposedly targets.
Therefore, Section 3(l)(2) is not narrowly tailored. See Reed, 135 S. Ct. at 2231-32.
Fourth, Section 3(l)(2) does not survive strict scrutiny because New Jersey cannot prove
that the law actually advances the state’s aims. In the First Amendment context, government
justifications backed by mere “anecdote and supposition” will not suffice, United States v. Playboy
Entm’t Grp., Inc., 529 U.S. 803, 822 (2000), and neither will “ambiguous proof,” Brown v. Entm’t
Merchs. Ass’n., 564 U.S. 786, 800 (2011). Compelling “empirical support” of efficacy must be
supplied. Globe Newspaper Co. v. Superior Court for Norfolk County, 457 U.S. 596, 609 (1982).
But there is none here—not in the text of the bill, not its legislative history, and not anywhere else.
Cf. Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2313-14 (2016) (“Determined
wrongdoers, already ignoring existing statutes and safety measures, are unlikely to be convinced
to adopt safe practices by a new overlay of regulations.”).
In particular, New Jersey’s effort to prove efficacy is bound to fail because the information
they seek to censor is already freely available across the internet. The digital firearms information
that Defense Distributed already published was thereby committed to the internet’s public domain,
where independent republishers beyond Defense Distributed and New Jersey’s control will make
those files readily accessible on one website or another forever—regardless of whether New
Jersey’s Attorney General decides to exact vengeance on the publisher he most dislikes.

16

 New Jersey has repeatedly admitted as much in its own court filings, which take the
position that “posting these codes is a bell that can never be un-rung.” Ex. 4 at 99; see also Ex. 6
at 1 (“Once [Defense Distributed] opens that Pandora’s box, it can never be closed.”). Proof of
this reality is, indeed, overwhelming.9 Because of this fact, New Jersey cannot possibly establish
that post-hoc prosecution of Defense Distributed will effectuate its supposed interest in erasing
already-released information from the public domain.
2.

Overbreadth makes Section 3(l)(2) unconstitutional.

Plaintiffs are also likely to succeed on the merits of their First Amendment claim because
Section 3(l)(2) is unconstitutionally overbroad. The overbreadth doctrine “prohibits the
Government from banning unprotected speech” where, as is the case with Section 3(l)(2), “a
substantial amount of protected speech is prohibited or chilled in the process.” Ashcroft, 535 U.S.
at 255. Section 3(l)(2) violates this doctrine in no less than six separate ways.
First, Section 3(l)(2) is overbroad because it criminalizes speech regardless of its
relationship to illegal conduct. Constitutionally, the “government may not prohibit speech because
it increases the chance an unlawful act will be committed ‘at some indefinite future time’”; it may
“suppress speech for advocating the use of force or a violation of law only if ‘such advocacy is
directed to inciting or producing imminent lawless action and is likely to incite or produce such
action.’” Id. at 253-54 (quoting Hess v. Indiana, 414 U.S. 105, 108 (1973) (per curiam), and
Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (per curiam)). In other words, states can only
prohibit speech to prevent illegal conduct when the speech is “integral to criminal conduct,”
United States v. Stevens, 559 U.S. 460, 468 (2010) (emphasis added). But speech cannot be
“integral to criminal conduct” if it has only a “contingent and indirect” relationship to that conduct.

9

See Ex. 8 at 1; Ex. 12 at 3; Ex. 23 ¶ 4; Ex. 24; Ex. 27 at 10; Ex. 28 at 1; Ex. 29; Ex. 30; Ex. 32 at
1, 3; Ex. 33; Ex. 37; Ex. 38; Ex. 39; Ex. 40; Ex. 41; Ex. 49; see also Ex. 30; Ex. 31.

17

 Ashcroft, 535 U.S. at 250. It is not enough for the state to allege, as New Jersey does here, that
there is “some unquantified potential for subsequent criminal acts.” Id. Indeed, the Supreme Court
has recognized that “it would be quite remarkable to hold that speech by a law-abiding possessor
of information can be suppressed in order to deter conduct by a non-law abiding third party.”
Bartnicki, 532 U.S. at 529-30.
Virtually all of the speech covered by Section 3(l)(2) falls squarely on the protected side
of Brandenburg and Ashcroft’s line, either because the expression’s recipient commits no illegal
act at all or because, if they did, the causal link is merely contingent and indirect. Cf. Staples v.
United States, 511 U.S. 600, 610 (1994) (“[T]here is a long tradition of widespread lawful gun
ownership by private individuals in this country.”). Yet Section 3(l)(2) still criminalizes every
instance of “distribut[ion]” no matter what. That alone constitutes classic overbreadth.
Second, Section 3(l)(2) is overbroad because it also criminalizes the low-tech, in-person
“offer” and “advertise[ment]” of instructions—squarely protected speech—even if no actual
distribution of the information occurs. In the case of an unconsummated offer or advertisement,
the state lacks a sufficiently compelling interest in applying its content-based speech ban.
Third, Section 3(l)(2) is overbroad because it criminalizes an “agreement or attempt to
distribute.” New Jersey lacks a compelling interest to criminalize an “agreement or attempt to
distribute” instructions if the distribution never comes to fruition. The same overbreadth logic
applies to the statute’s criminalization of instructions that “may be used” toward a prohibited
purpose but are not in fact.
Fourth, Section 3(l)(2) is overbroad because it also criminalizes sharing information about
any “firearm component.” This covers a wide array of generic items—such as fasteners, nuts,
bolts, and screws—that have unlimited potential uses and are not unique to firearms. Even if New

18

 Jersey could criminalize certain speech concerning a completed “firearm,” it could not possibly
criminalize speech about mundane parts available in any hardware store.
Fifth, Section 3(l)(2) is overbroad because it fails to distinguish between information that
has, and has not, been committed to the public domain. Digital firearms information is already
freely circulating in the public domain because of publications that took place before this law was
enacted. See supra at pp. 16-17 nn. 5-6. “[T]he Government may not . . . restrict individuals from
disclosing information that lawfully comes into their hands in the absence of a ‘state interest of the
highest order.’” United States v. Aguilar, 515 U.S. 593, 605 (1995). However, this statute draws
no distinction between truly novel “instructions” and those that anyone has been able to obtain
with simple Google searches for months. Therefore, the statute’s coverage of these readilyavailable files renders it overbroad.
Finally, the state cannot salvage its statute by proffering a narrow reading. The statute
covers all of these problematic situations too clearly to allow for any such attempt at narrowing
(which would not necessarily bind future criminal prosecutions anyhow). See Dana’s R.R. Supply
v. Att’y Gen., Florida, 807 F.3d 1235, 1242 (11th Cir. 2015) (“We will not, however, contort,
disfigure, or vitiate a law’s plain meaning and readily discerned purpose merely for the sake of
statutory preservation.”). Because Section 3(l)(2)’s ordinary meaning is so overly broad, it creates
an unconstitutional “chilling effect on free speech” for countless Americans, regardless of any
atextual saving construction the state’s lawyers might conjure. Brown v. Entm’t Merchs. Ass’n,
564 U.S. 786, 807 (2011). The overbreadth doctrine does not permit such legerdemain in the First
Amendment context. See Stevens, 559 U.S. at 481.

19

 3.

A missing scienter element makes Section 3(l)(2) unconstitutional.

The Plaintiffs’ First Amendment claim is also likely to succeed because Section 3(l)(2)
lacks a necessary scienter element. States cannot create speech crimes without including a
stringent requirement of scienter—that is, knowledge of the fact that truly distinguishes innocent
acts from guilty ones. See, e.g., Holder v. Humanitarian Law Project, 561 U.S. 1, 16-17 (2010);
New York v. Ferber, 458 U.S. 747, 765 (1982); Smith v. California, 361 U.S. 147, 153-54 (1960).
Section 3(l)(2) lacks the needed scienter element because it does not even require the speaker to
know that instructions will “be used to program a three-dimensional printer to manufacture or
produce a firearm, firearm receiver, magazine, or firearm component”—let alone know that the
recipient would use the information to engage in illegal production of a firearm.10 Hence, the
requisite scienter requirement is missing. See Rice v. Paladin Enters., Inc., 128 F.3d 233, 247-48
(4th Cir. 1997); see also Boos, 485 U.S. at 320-21.
B.

Plaintiffs will likely succeed on the merits of the Due Process Clause claim.

Plaintiffs are also likely to succeed on the merits of their claim that Section 3(l)(2) is void
for vagueness under the Due Process Clause. See FAC ¶¶ 147-56.11 “A law may be vague in
violation of the Due Process Clause for either of two reasons: ‘First, it may fail to provide the kind
10

Federal laws permit the manufacture of a firearm for personal use. See Does an Individual Need
a License to Make a Firearm for Personal Use?, Bureau of Alcohol, Tobacco, Firearms and
Explosives (Nov. 6, 2017), https://www.atf.gov/firearms/qa/does-individual-need-license-makefirearm-personal-use (“[A] license is not required to make a firearm solely for personal use.”);
William J. Krouse, Gun Control: 3D-Printed AR-15 Lower Receivers, Cong. Res. Serv. Insight, 2
(Aug. 22, 2018), https://fas.org/sgp/crs/misc/IN10957.pdf (“In short, unfinished receivers and the
components needed to build fully functional AR-15s and other firearms are legally available on
the U.S. civilian gun market and can be purchased without a background check under federal
law.”); see also, e.g., 18 U.S.C. § 922(a)(1)(a).
11

Pre-enforcement facial vagueness challenges are allowed to address the Due Process Clause’s
concern for “arbitrary and discriminatory enforcement,” Act Now to Stop War & End Racism Coal.
& Muslim Am. Soc’y Freedom Found. v. D.C., 846 F.3d 391, 410 (D.C. Cir. 2017), and also to the
extent that they seek to halt the chilling of protected speech, Dana’s, 807 F.3d at 1241. Plaintiffs’
claim implicates both concerns.

20

 of notice that will enable ordinary people to understand what conduct it prohibits; second, it may
authorize and even encourage arbitrary and discriminatory enforcement.’” Act Now, 846 F.3d at
409 (quoting City of Chicago v. Morales, 527 U.S. 41, 56 (1999)).

Section 3(l)(2) is

unconstitutionally vague in both respects.
A key Section 3(l)(2) vagueness problem is that it criminalizes the “publication” of “code
or instructions stored and displayed in electronic format as a digital model that may be used to
program a three-dimensional printer to manufacture or produce a firearm, firearm receiver,
magazine, or firearm component.” Yet it is impossible for sophisticated parties, let alone ordinary
people, to understand what counts as “code . . . that may be used to” engage in the proscribed
programming.
In the same way that “(w)hat is contemptuous to one man may be a work of art to another,”
Smith v. Goguen, 415 U.S. 566, 575 (1974), what “may be used” by one programmer can be totally
useless to another. Speakers like Defense Distributed cannot tell in advance on which side of the
line their speech will fall. Indeed, like the residual clause at issue in Johnson v. United States, 135
S. Ct. 2551 (2015), Section 3(l)(2) ties the crime’s meaning not to “real-world facts or statutory
elements,” but to a “judicially imagined” notion of what information “may be used” by
hypothetical persons. Id. at 2557.
Because of indeterminacies like this, the statute both chills speech nationwide and
encourages arbitrary and discriminatory enforcement, see Smith, 415 U.S. at 575 (“Statutory
language of such a standardless sweep allows policemen, prosecutors, and juries to pursue their
personal predilections.”). Indeed, this case proves the latter point especially: the statements made
during Section 3(l)(2)’s signing ceremony show that New Jersey’s Attorney General wishes to
prosecute Defense Distributed not because it poses some sort of unique threat, but because Defense
Distributed and its founder espouse views that New Jersey’s politicians dislike. See Ex. 2.

21

 C.

Plaintiffs will likely succeed on the merits of the Commerce Clause claim.

Plaintiffs are also likely to succeed with the claim that New Jersey has subjected and is
subjecting the Plaintiffs to an unconstitutional deprivation of the right to be free of commercial
restraints that violate the dormant Commerce Clause. See FAC ¶¶ 157-66. Two modes of judicial
review occur in dormant Commerce Clause cases. Apart from the default balancing test of Pike v.
Bruce Church, Inc., 397 U.S. 137 (1970), strict scrutiny applies to any law that discriminates
against out-of-state economic interests on its face, in its purpose, or in its practical effect. E.g.,
Rocky Mtn. Farmers Union v. Corey, 730 F.3d 1070, 1087 (9th Cir. 2013).
Section 3(l)(2) triggers strict scrutiny because it discriminates against out-of-state
economic interests by “regulat[ing] conduct that takes place exclusively outside the state.”
Backpage.com, LLC v. Hoffman, No. 13-CV-03952 DMC JAD, 2013 WL 4502097, at *11 (D.N.J.
Aug. 20, 2013). Specifically, discrimination occurs with respect to website publication: even
though speakers like Defense Distributed operate their websites in a passive fashion from outside
of New Jersey, Section 3(l)(2) expressly projects New Jersey’s law about what can and cannot be
said on the internet throughout the entire Union. See Am. Libraries Ass’n v. Pataki, 969 F. Supp.
160, 182 (S.D.N.Y. 1997).
Discrimination also occurs with respect to the statute’s “offer” and “advertisement” bans.
That conduct will often occur entirely outside of New Jersey—such as at the trade shows that
Defense Distributed attends—and still qualify as a crime under Section 3(l)(2).
Because these applications are direct and substantial parts of the statute, Section 3(l)(2) is
unconstitutional per se, “regardless of whether the statute’s extraterritorial reach was intended by
the legislature.” Healy v. Beer Inst., 491 U.S. 324, 336 (1989); see Am. Booksellers Found. v.
Dean, 342 F.3d 96, 104 (2d Cir. 2003); Pataki, 969 F. Supp. at 182. The Court should so hold.

22

 D.

Plaintiffs will likely succeed on the merits of the Supremacy Clause claim.

Plaintiffs’ complaint pleads that New Jersey is violating 42 U.S.C. § 1983 by censoring
speech with state laws that Congress chose to preempt and immunize the citizenry from. FAC ¶¶
167-73. Plaintiffs are likely to succeed on the merits of this claim for multiple reasons.
1.

CDA Section 230 preempts Section 3(l)(2).

First, Congress immunized the Plaintiffs from prosecution under Section 3(l)(2) with the
Communications Decency Act of 1996 (“CDA”), “Congress’s grant of ‘broad immunity’ to
internet service providers ‘for all claims stemming from their publication of information created
by third parties.’” Google, Inc. v. Hood, 822 F.3d 212, 220 (5th Cir. 2016). CDA Section
230(c)(1) provides that, for interactive computer services such as a website, “[n]o provider or user
of an interactive computer service shall be treated as the publisher or speaker of any information
provided by another information content provider.” 47 U.S.C. § 230(c)(1).12 Section 230(e)(3),
in turn, preempts state laws that are “inconsistent with” subsection (c)(1). 47 U.S.C. § 230(e)(3).
The Plaintiffs’ case directly implicates CDA Section 230. Much of the digital firearms
information that Defense Distributed published in the past, and desires to publish in the future, is
“information provided by another information content provider.” 47 U.S.C. § 230(c)(1).
The digital firearms information that Defense Distributed published in July 2018 is a
perfect example. “With the exception of the Liberator CAD files, which were previously posted
by Defense Distributed before receiving the State Department’s letter, the other CAD files posted
at this time were created by persons other than Defense Distributed and had been posted on the
internet by persons other than Defense Distributed before Defense Distributed republished them

12

“The term ‘information content provider’ means any person or entity that is responsible, in whole
or in part, for the creation or development of information provided through the Internet or any
other interactive computer service.” § 230(f)(3).

23

 on DEFCAD.” Ex. 26 ¶ 19. Thus, while this action certainly concerns the Plaintiffs’ right to
publish new digital firearms information, for purposes of the CDA, this case also implicates
Plaintiffs’ right to republish digital firearms information that was provided by other people
engaged in the open source development process.13
Section 3(l)(2) criminalizes the distribution of information regardless of whether
information was republished—i.e., “provided by another information content provider.” As such,
Section 3(l)(2) is facially “inconsistent with” Section 230(c)(1) and preempted. This fault makes
Section 3(l)(2) facially invalid, for “there can be no constitutional application of a statute that, on
its face, conflicts with Congressional intent and therefore is preempted by the Supremacy Clause.”
United States v. Arizona, 641 F.3d 339, 346 (9th Cir. 2011).
This conclusion is not novel. Courts have consistently invalidated similar state criminal
laws because they were preempted by CDA Section 230. See Backpage.com, LLC v. Hoffman,
No. 13-CV-03952 DMC JAD, 2013 WL 4502097, at *1 (D.N.J. Aug. 20, 2013); Backpage.com,
LLC v. Cooper, 939 F. Supp. 2d 805, 823 (M.D. Tenn. 2013); Backpage.com, LLC v. McKenna,
881 F. Supp. 2d 1262, 1271 (W.D. Wash. 2012). The Court should follow those decisions here.
2.

The State Department’s authority preempts Section 3(l)(2).

Additionally, New Jersey’s use of Section 3(l)(2) to stop Defense Distributed’s publication
of digital firearms information is preempted by the federal government’s exclusive authority over
foreign affairs. Specifically, Congress charged the executive branch with administering and
enforcing pertinent provisions of the Arms Export Control Act of 1976 (“AECA”), 22 U.S.C. ch.
39, and the International Traffic in Arms Regulations (“ITAR”), 22 C.F.R. Parts 120-130. See 28

13

A judgment based solely on the CDA would not provide complete relief to Plaintiffs, as
Defendants could rely on other provisions of state law—such as “public nuisance and negligence
laws”—to prohibit the distribution of new digital firearm information. See infra Part II.
24

 U.S.C. §§ 516, 519; see also 22 U.S.C. § 2778(a)(1); 22 U.S.C. § 2778(g)(6); 22 U.S.C.
§ (e)(2)(A); 22 C.F.R. § 126.7(a).
By seeking to criminalize Plaintiffs’ publication of matters that the State Department has
expressly authorized for publication, New Jersey seeks to have its legislature take over the
President’s job of “control[ling] the import and the export of defense articles.” § 2778(a)(1).
Indeed, Attorney General Grewal declared, “[t]he federal government is no longer willing to stop
Defense Distributed from publishing this dangerous code, and so New Jersey must step up.” Ex.
6 at 1. States cannot regulate this aspect of foreign policy. See Crosby v. Nat’l Foreign Trade
Council, 530 U.S. 363, 375 (2000); Nat’l Foreign Trade Council, Inc. v. Giannoulias, 523 F. Supp.
2d 731, 738-742 (N.D. Ill. 2007). The Supremacy Clause forbids this usurpation of federal power.
See Armstrong v. Exceptional Child Ctr., Inc., 135 S. Ct. 1378, 1384 (2015).
E.

Plaintiffs will suffer irreparable harm in the absence of immediate relief.

New Jersey’s enforcement of Section 3(l)(2) causes irreparable harm currently, and unless
enjoined, will do so to an even greater extent in the near future. Plaintiffs have engaged—and
desire to engage in the future—in at least three distinct courses of conduct that New Jersey’s speech
crime unconstitutionally outlaws. For fear of being prosecuted under New Jersey’s new speech
crime, Plaintiffs have stopped engaging in these constitutionally protected courses of conduct. In
each respect, Plaintiffs’ speech lies squarely within Section 3(l)(2)’s proscriptions. And because
the law is unconstitutional, the looming threat of its enforcement against Plaintiffs causes
irreparable harm.
First, Section 3(l)(2) causes irreparable harm because Plaintiffs have published digital
firearms information on the internet and intend to do so in the future. See supra pp. 5-6. Section
3(l)(2) clearly covers this conduct by making it a crime to distribute the banned “digital
instructions” “by any means, including the Internet.”

25

 Second, Section 3(l)(2) causes irreparable harm because Defense Distributed has published
digital firearms information via the mail and intends to do so in the future. See supra at pp. 7-8.
Section 3(l)(2) clearly covers this conduct by making it a crime to “distribute” the banned “digital
instructions” and defining “distribute” to mean “mail.”
Third, Section 3(l)(2) causes irreparable harm because Defense Distributed has offered and
advertised digital firearms information and intends to do so in the future. See supra at 8-9. Section
3(l)(2) clearly covers this conduct by making it a crime to “distribute” the banned “digital
instructions” and defining “distribute” to mean “offer” and “advertise.”
In each of these respects, New Jersey’s enforcement of Section 3(l)(2) would cause
irreparable harm by subjecting the Plaintiffs to unconstitutional punishment. Moreover, the
looming threat of such unconstitutional enforcement causes a nationwide chilling effect that stops
Plaintiffs and other law-abiding people from engaging in speech that the Constitution entitles them
to express freely. See supra at pp. 5-9; Dana’s, 807 F.3d at 1241 (“Litigants who are being ‘chilled
from engaging in constitutional activity,’ . . . suffer a discrete harm independent of enforcement.”).
Both of these harms—the actual enforcement of New Jersey’s unconstitutional criminal law and
the chilling effect caused by the specter of its enforcement—are irreparable. See, e.g., Elrod v.
Burns, 427 U.S. 347, 373 (1976) (plurality op.) (“The loss of First Amendment freedoms, for even
minimal periods of time, unquestionably constitutes irreparable injury.”).14

14

The irreparable injury requirement is met notwithstanding the United States District Court for
the District of Washington’s entry of a preliminary injunction against the State Department. See
supra note 3. Additionally, New Jersey bears a “formidable” burden to demonstrate that it is no
longer threatening the Plaintiffs. Already, LLC v. Nike, Inc., 568 U.S. 85, 92 (2013). Specifically,
under the “voluntary cessation” doctrine, the Defendant must “show that the challenged behavior
cannot reasonably be expected to recur.” Id. New Jersey cannot meet that burden here because the
state continued its suppression efforts against the Plaintiffs well after the preliminary injunction’s
entry—both by enacting the Section 3(l)(2) speech crime and by continuing its civil legal actions
against Plaintiffs. See Exs. 9-10.

26

 F.

The balance of equities favors the Plaintiffs and a preliminary injunction will
serve the public interest.

The balance of equities favors an injunction. The Plaintiffs have approached this litigation
in a fair manner, having both exhausted all possible avenues for relief in Defense Distributed I and
sought a Temporary Restraining Order shortly after New Jersey enacted its new speech crime. The
risk of erroneously denying the injunction entails the “potential for extraordinary harm and a
serious chill upon protected speech.” Ashcroft v. Am. Civil Liberties Union, 542 U.S. 656, 671
(2004). “The harm done from letting [an] injunction stand pending a trial on the merits, in contrast,
will not be extensive,” especially where, as here, “[n]o prosecutions have yet been undertaken
under the law, so none will be disrupted if the injunction stands.” Id. The state’s interest in
enforcing under their new law will be just as feasible a few weeks from now as it is at present.
Finally, it is always in the public interest to prevent the violation of a party’s constitutional
rights. See, e.g., O’Donnell v. Goodhart, 900 F.3d 220, 232 (5th Cir. 2018). And with respect to
preemption, in particular, the “[f]rustration of federal statutes and prerogatives are not in the public
interest.” United States v. Alabama, 691 F.3d 1269, 1301 (11th Cir. 2012).
II.

The Court should enjoin New Jersey’s civil enforcement efforts.
The Court should also issue a preliminary injunction against the New Jersey Attorney

General’s use of civil legal actions to censor Defense Distributed. In every key respect, the same
constitutional analysis that applies to the new speech crime applies to the New Jersey Attorney
General’s use of civil legal methods to achieve the same censorship ends. Indeed, the application
of “public nuisance and negligence laws” to speech on the internet is orders-of-magnitude more
overbroad, underinclusive, and vague than Section 3(l)(2). Additionally, the Plaintiffs are likely
to succeed on the merits of their Section 1983 action’s First Amendment claim because New
Jersey’s conduct violates the doctrine regarding unconstitutional prior restraints. See FAC ¶ 124.

27

 New Jersey’s delivery of a cease-and-desist letter to Defense Distributed constitutes a prior
restraint because it demands—in advance, and upon pain of legal punishment—that Defense
Distributed never publish “printable-gun computer files for use by New Jersey residents.” Ex. 3
at 1. So do civil actions like the New Jersey Attorney General’s effort to obtain an ex parte
temporary restraining order against Defense Distributed. See Ex. 4.
As prior restraints, the state’s civil censorship efforts bear a heavy presumption of
unconstitutionality. See Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 71-72 (1963); Test Masters
Educ. Servs., Inc. v. Singh, 428 F.3d 559, 579 (5th Cir. 2005). But New Jersey cannot overcome
this burden. The same reasoning that prevents Section 3(l)(2) from surviving strict scrutiny also
spells defeat for the civil censorship effort as a prior restraint. See Bernard v. Gulf Oil Co., 619
F.2d 459, 473 (5th Cir. 1980) (en banc), aff'd, 452 U.S. 89 (1981).
Importantly, this constitutional violation encompasses both the action taken directly
against Defense Distributed and New Jersey’s associated efforts to threaten, coerce, and intimidate
Defense Distributed’s service providers. See Backpage.com, LLC v. Dart, 807 F.3d 229 (7th Cir.
2015); Okwedy v. Molinari, 333 F.3d 339 (2d Cir. 2003); Rattner v. Netburn, 930 F.2d 204 (2d
Cir. 1991). Backpage.com, LLC is on all fours, and supports every major element of Defense
Distributed’s request for this additional category of injunctive relief.
CONCLUSION
The motion for a preliminary injunction should be granted. The Court should enjoin
Defendant Gurbir Grewal, in his official capacity as New Jersey Attorney General, from enforcing
Section 3(l)(2) of Senate Bill 2465 against the Plaintiffs. The Court should also enjoin the New
Jersey Attorney General’s use of cease-and-desist letters and other civil legal actions to stop the
Plaintiffs’ publication of digital firearms information.

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 Date: December 4, 2018.

Respectfully submitted,
BECK REDDEN LLP
By /s/ Chad Flores
Chad Flores*
cflores@beckredden.com
State Bar No. 24059759
1221 McKinney St., Suite 4500
Houston, TX 77010
(713) 951-3700   (713) 952-3720 (fax)
FARHANG & MEDCOFF
Matthew Goldstein*
mgoldstein@fmlaw.law
D.C. Bar No. 975000
4801 E. Broadway Blvd., Suite 311
Tucson, AZ 85711
(202) 550-0040   (520) 790-5433 (fax)
Josh Blackman
joshblackman@gmail.com
Virginia Bar No. 78292
1303 San Jacinto Street
Houston, TX 77002
(202) 294-9003   (713) 646-1766 (fax)
*Admitted pro hac vice
Attorneys for Plaintiffs Defense Distributed
and Second Amendment Foundation, Inc.

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 CERTIFICATE OF SERVICE
On December 4, 2018, I served this filing on the following persons via CM/ECF:
Counsel for Defendants Gurbir S. Grewal and Matthew Denn
Kenneth W. Taber
Ronald Casey Low
Counsel for Defendant Michael Feuer
Connie K. Chan
James P. Clark
Michael M. Walsh
Jason P. Steed
Counsel for Defendants Josh Shapiro and Thomas Wolf
J. David Cabello
John D. Kimball
Counsel for Defendant Andrew Cuomo
Pete Marketos
Tyler Bexley
Counsel for Plaintiffs
Chad Flores
Matthew A. Goldstein
Joshua Michael Blackman
/s/ Chad Flores
Chad Flores

30