By Alex Praschma
As our society continues to feud over gun control, new-age technology in the firearm industry continues to progress faster than the Government. About three years ago, the first 3D-printable gun emerged, trembling the federal regulatory system that was attempting to place impeding restrictions on the industry. Defense Distributed, an organization that promotes printing 3D-guns, took the Internet by storm with they began posting computer-aided design (“CAD”) files that enabled anyone with a 3D-printer to produce their very own firearm.
The United States Government decided it was time to step in when they witnessed the website’s access rates exceeding 100,000 visits per day. Shortly thereafter, the State Department of Defense sent Defense Distributed a letter asserting that 10 of their CAD files, were in violation of the International Traffic in Arms Regulation (“ITAR”), which requires “advance government authorization to export technical data,” and imposes up to 20 years in prison along with fines as high as $1 million per violation. Fearful of federal prosecution, Defense Distributed took the files down, but the files began remerging on torrent sites across the World Wide Web.
After about three years, with the aid of the Second Amendment Foundation, Defense Distributed initiated litigation against the State Department. The basis of their claim was that the files for their printable firearms constituted “speech”, which is protected online.
Furthermore, the Government’s action constituted “prior restraint” due to the fact they were essentially preventing publication before any actual harm occurred. In the past, the Supreme Court rejected acts of prior restraint and Defense Distributed argued that this situation called for a similar outcome.
To their surprise, the District Court arrived at a different result. In their 2-1 ruling, they found that Defense Distributed’s First Amendment right to free speech did not trump the Government’s national security concerns. Specifically, the court said that generally, the protection of constitutional rights is deemed the “highest public interest” however, the State Department’s argument, centered on ensuring national security and defense, was more persuasive.
In the eyes of the court, preventing Defense Distributed from providing technical information and untraceable weapon designs to those who could be enemies of the United States was a compelling interest that justified a First Amendment right restriction.
What makes this case particularly interesting is the District Court Judge’s dissent. Disagreeing with the conclusion that other judges arrived at, she claimed that this decision was an “irrational representation of the export regulations” and characterized the Government’s action as “pure content-based regulation.” Her dissent heavily attacked the State Department by asserting, “it is not at all clear that the State Department has any concern for the First Amendment rights of the American public and press.” Further, she argued that simply because there is a chance that an internet web page could also be used to “distribute technical data domestically” does not alter the analysis when determining whether Defense Distributed’s right to free speech under the First Amendment is outweighed by the concern for national security.
The dissenting opinion goes on to attack the Government on the grounds that they did not meet their burden to show that the regulation is “narrowly tailored to suit a compelling interest” and defends Defense Distributed by saying “it is not the public’s burden to prove their right to discuss lawful, non-classified, non-restricted technical data.”
Defense Distributed continues to stand their ground by asserting that the Government’s argument, “CAD files for a working gun constitutes a firearm”, is exceedingly overbroad. Additionally, even in the event that Defense Distributed was able to limit web page access to domestic IP addresses, it would be nearly impossible for them to stop a foreign citizen from looking at the web page through a United States citizen’s Internet connection. By upholding this decision, the law is allowing the Government to effectively deem the Internet as “a forbidden ground for collaboration” if in fact a CAD file could fall within their overbroad definition of ‘technical data.’
At this point, Defense Distributed has the option to seek further appeal and ask the 5th Circuit for an en-banc hearing of the case, which would allow for a review by all of the judges rather than a three judge panel. Thus, with our society’s current dismay over the use and ownership of firearms, one cannot help but think that Defense Distributed will continue to fight for what they believe is a violation of the First Amendment.
Student Bio: Alex is a 3L Day Student with a concentration in Intellectual Property. He is currently a Legal Intern at Spartan Race, Inc. & Jeffrey Denner Associates, P.C.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
