Civil Liberties

3D-Printed Gun Plan Ban Raises First Amendment Issues

Revives issues already addressed in the government's failed attempt to control encryption software


Why is this a First Amendment case? One of the issues is whether the government can prevent citizens from publishing gun blueprints. A big gateway question, though, is how to characterize Defense Distributed's CAD files in the first place. Is a CAD file expressive speech that should be protected, or a functional thing that should be regulated? This distinction is important because the government has tremendous power to regulate things, but far less power to regulate speech. When courts first started to come to grips with software, they came out on the side of protecting it as speech despite its functional aspects, but they might view 3D printing files differently because when you "run" them, you get things. …

This isn't the first time courts have had to sort out the mess when innovation hurtled into arms control law and the First Amendment. The US Munitions List used to cover a wide range of cryptography software, a restriction only relaxed in 1996 by an Executive Order by President Clinton — who, even then, perhaps, realized the futility of censoring the spread of code. Before that, though, PGP creator Phil Zimmerman was criminally investigated, but never charged, for violating ITAR. The issue made its way to the courts in 1997 in Bernstein v. US Department of State, where Daniel Bernstein, a UC Berkeley computer science researcher, sued to be allowed to publish his cryptography research, which included working code. Judge Marilyn Hall Patel of the U.S. District Court for the Northern District of California found that it was unconstitutional for the government to prevent Bernstein from publishing his crypto software. Judge Patel held that blocking Bernstein's publication amounted to a prior restraint on his speech that violated the First Amendment.