Enlarge / Software engineer Travis Lerol takes aim with an unloaded Liberator handgun in 2013.AFP / Getty Images News
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A federal appeals court ruled Tuesday against Defense Distributed, the Texas organization that promotes 3D-printed guns, in a lawsuit that it brought last year against the State Department.
In a 2-1 decision, the 5th Circuit Court of Appeals was not persuaded that Defense Distributed’s right to free speech under the First Amendment outweighs national security concerns.
The majority concluded:
Ordinarily, of course, the protection of constitutional rights would be the highest public interest at issue in a case.
That is not necessarily true here, however, because the State Department has asserted a very strong public interest in national defense and national security.
Indeed, the State Department’s stated interest in preventing foreign nationals—including all manner of enemies of this country—from obtaining technical data on how to produce weapons and weapon parts is not merely tangentially related to national defense and national security; it lies squarely within that interest.
As Ars reported in February 2016, the lawsuit, Defense Distributed v.
Department of State, centers on whether a website that publishes CAD files—which would enable foreigners outside the US to print a firearm—violates munitions export laws.
Fearing a possible lawsuit by the State Department or prosecution by the government, Defense Distributed took the files down three years ago, but they have since reappeared on BitTorrent sites.
Previously at the district court level, Defense Distributed filed a motion for preliminary injunction, which would have allowed it to restore those files and even publish new ones.
The appeal was meant to challenge the denial of the preliminary injunction. Under the 5th Circuit order, Defense Distributed will now be remanded, or sent back down, to the district court for further consideration.
Defense Distributed could appeal further and ask the 5th Circuit for an en banc re-hearing of the case, which would be before all of the judges rather than the normal three-judge panel.
A protracted struggle
The federal civil suit originated three years ago when Cody Wilson and his group, Defense Distributed, published designs for the “Liberator,” the world’s first 3D-printed handgun. Within months, Defense Distributed received a letter from the United States Department of State’s Office of Defense Trade Controls Compliance, stating that 10 files, including the designs of the Liberator, were in violation of the International Traffic in Arms Regulations (ITAR).
This letter came despite the fact that these files had already been downloaded hundreds of thousands of times and continue to circulate online.
Defense Distributed then re-submitted a “commodity jurisdiction request” to the Department of State, which they hoped would clear the way for the publication of the files.
After waiting for two years, Defense Distributed, along with the Second Amendment Foundation, sued the Department of State and argued that the government’s action constituted “prior restraint”—preventing publication before it occurs.
In the United States, the Supreme Court has generally rejected the concept of prior restraint.
However, one member of the 5th Circuit, District Judge Edith Jones, directly disagreed with her colleagues.
In a scathing dissent, she called it an “irrational representation” of the export regulations.
She also described the government’s actions as “pure content-based regulation.”
In sum, it is not at all clear that the State Department has any concern for the First Amendment rights of the American public and press.
Indeed, the State Department turns freedom of speech on its head by asserting, “The possibility that an Internet site could also be used to distribute the technical data domestically does not alter the analysis….” The Government bears the burden to show that its regulation is narrowly tailored to suit a compelling interest.
It is not the public’s burden to prove their right to discuss lawful, non-classified, non-restricted technical data.
Wilson did not immediately respond to Ars’ request for comment.