3D Printing

Defense Distributed Injunction Request Denied in Suppression of Gun-Related Internet Speech Case

Judge not sure that government preventing the distribution of software files related to 3D-printing a pistol violates First or Second Amendment.

|

This week U.S. District Judge Robert Pitman denied a motion for a preliminary injunction against the State Department in the case of Defense Distributed v. U.S. Dep't of State.

I've reported early and often on the ongoing lawsuit against the State Department, accusing it of violating the First, Second, and Fifth Amendment rights of the 3D-printed weapon development non-profit Defense Distributed (DD), run by anarchist gadfly Cody Wilson (see my 2013 profile of Wilson).

The basics, quoted from my own earlier reporting:

This case is important in pushing back against government attempts to shut up open discussion of technical details of weapons making on the Internet or elsewhere, a case that implicates both our First Amendment rights to speak and publish and our Second Amendment rights for meaningful access to weapons of self-defense…

In quick summation, a State Department agency in 2013 ordered Wilson and his company to take down software files that could instruct 3D printers to make a simple plastic handgun, claiming that doing so was in essence an illegal export of a munition. Wilson complied, but later sued claiming the demand was an illegal violation of his rights.

Quotes and comment from Judge Pitman's decision.

He starts with explaining that it takes a lot to get a preliminary injunction to stop someone from an action you assert violates your rights, and he believes the very fact it took DD so long after the injury to file suit proves that they do not face any urgent necessity to stop the State Department from violating their rights.

Judge Pitman does then grant that, well, precedent states that First and Second Amendment violations do rise to the level of "irreparable"  that might demand an injunction.

Wilson talked to me about the delay in suing aspect back in May:

The injury to Wilson and his company happened years ago, but Wilson explains that for a long time they were prepared for actual enforcement action from the government, so were prepared to be in a "defensive" mode on the legal questions surrounding ITAR's letter to him.

Years went by, and he realized "their intention is not to ever move and hope this all goes away." That's when he decided to take matters into his own hand and go on the offense and sue them.

Pitman giveth and then he taketh away, as he says there are other necessary qualifications for injunctions that DD does not meet. One of the multi "prongs" requiring judicial consideration:

require[s] weighing of the respective interests of the parties and the public. Specifically, that the threatened injury out-weighs any damage that the injunction may cause the opposing party and that the injunction will not disserve the public interest. In this case, the inquiry essentially collapses because the interests asserted by Defendants are in the form of protecting the public by limiting access of foreign nationals to "defense articles."

Those "defense articles" are, recall, a fragile printed plastic pistol, one for which the information on how to instruct a 3D printer to print them are available worldwide anyway, just not from DD and Wilson. These are not secret classified high powered munitions here.

The relevant law under which DD is being restricted is meant, in language quoted in Pitman's decision, to:

take into account whether the export of an article would contribute to an arms race, aid in the development of weapons of mass destruction, support international terrorism, increase the possibility of outbreak or escalation of conflict, or prejudice the development of bilateral or multilateral arms control or nonproliferation agreements or other arrangements.

You can decide yourself if you think software to allow 3D printing of a plastic pistol that is already available worldwide rises to those levels and demands restriction of a U.S. citizens' speech and ability to have access to the means to practice the Second Amendment.

Pitman considers the State Department's quashing of DD's speech to be content neutral and thus subject to mere intermediate scrutiny—that is, it merely needs to be narrowly tailored to achieve some necessary government purpose:

The ITAR [International Traffic in Arms Regulation] does not regulate disclosure of technical data based on the message it is communicating. The fact that Plaintiffs are in favor of global access to firearms is not the basis for regulating the "export" of the computer files at issue. Rather, the export regulation imposed by the AECA [Arms Export Control Act] is intended to satisfy a number of foreign policy and national defense goals, as set forth above. Accordingly, the Court concludes the regulation is content-neutral and thus subject to intermediate scrutiny.

Pitman says that ITAR's restrictions on DD don't really prevent them from communicating and thus aren't a clear First Amendment violation:

a prohibition on Internet posting does not impose an insurmountable burden on Plaintiffs' domestic communications. This distinction is significant because the AECA and ITAR do not prohibit domestic communications. As Defendants point 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.

Pitman also doubts that the Second Amendment claims will win out in the eventual actual hearing of the case, since:

in Heller [the 2008 case that defines the Second Amendment as protecting an individual right to keep and bear commonly used weapons for self defense in the home] the discussion of the meaning of "keep and bear arms" did not touch in any way on an individual's right to manufacture or create those arms. The Court is thus reluctant to find the ITAR regulations constitute a burden on the core of the Second Amendment.

Pitman will be the same judge hearing the eventual actual lawsuit, Cody Wilson tells me today, and his reasoning here doesn't give a great deal of encouragement that Wilson and DD will actually win on the merits.

Wilson told me this morning that his legal team will be appealing this denial of motion for injunction on the State Department to the 5th Circuit Court of Appeals soon. Wilson was unimpressed with Pitman's decision, saying it more or less just "accepted the government's arguments entirely, even the specious equivalence of posting technical data being an export of defense articles."

Wilson also thinks that Pitman's decision that the ability to communicate his files domestically obviates any First Amendment concerns is, "in the Internet age, the most obviously hypocritical thing, it's like saying just because you can't speak verbally you aren't [being prohibited from communication] because you can still use hand gestures."

Advertisement

NEXT: Carly Fiorina Ascendant, Schumer Would Nuke Iran Deal, Humorless College Students: P.M. Links

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Defense Distributed Injunction Request Denied in Suppression of Gun-Related Internet Speech Case

    I recognize all those as English words, but in that order…..

    BZZZZZZZZZZZZT!

    *eyes go dim*

    1. Judge rules for government in Defense Distributed Case
      The 3-D gun printing company wanted a preliminary injunction
      Claim government regulation of weapons information violates 1st, Second Amendments

  2. This is some scary shit. This is prior restraint of speech, the one Constitutional restriction the courts have been best at protecting and enforcing.

    And this judge just lets it keep going on. If even the 1A gets the brush-off like this, then our judicial culture is changing, and not for the better.

    His reasoning about the delay is utterly specious. I’m not a litigator, but I have never seen “Well, if they want it so bad, why didn’t they run to court any sooner?” as an argument, much less a winning argument.

    The fact that, if he had brought it sooner, he would probably would have been booted out of court because no formal enforcement action had been taken, just converts this kind of crypto-thuggish behavior by agencies into an effective and valued tactic for exercising their authority without judicial oversight.

    1. Exactly.

    2. And this judge just lets it keep going on.

      It’s the FYTW clause that only the government can see in action.

      The fact that, if he had brought it sooner, he would probably would have been booted out of court because no formal enforcement action had been taken

      Right, he wouldn’t have standing to sue if he sued then. I’d expect a judge to know that. More FYTW.

      I’m reminded of “Ignorance is no excuse” and its use in modern times when the Federal government has given up counting the number of Federal crimes because there are so many.

      1. I have occasionally seen law student wearing tshirts with that saying. I restrain myself from beating them bloody with the federal register

        1. Just drop it on them. No need for a beating.

          1. He has to get the Federal Register high enough to drop it on them. Are there cranes that powerful?

            1. Hmm – business opportunity!

      2. Ignorance of the law is only an excuse if you are tasked with enforcing it.

        1. True, but I was thinking of the absurdity of the situation. How can “ignorance is no excuse” fly if there are so many crimes that the government, which is tasked with enforcing the laws making things crimes, has given up counting them as an impossible task?

          How can the judge require a plaintiff bring a suit earlier if earlier means the plaintiff has no standing to sue?

          I know, I’m applying reason and logic to the government.

    3. If even the 1A gets the brush-off like this, then our judicial culture is changing, and not for the better.

      Boy this water is getting hot. Any of you frogs feel it?

      1. *pulls Troy back into the basket*

        /crabs

        1. Thanks, bro.

  3. . . . protecting the public by limiting access of foreign nationals to “defense articles.

    So, the judge is basically saying that the right to keep and bear arms is not a *human* right, but one that explicitly arise from the constitution.

    This goes beyond the normal ‘the USG does not have to protect human rights in areas outside its jurisdiction’ to ‘the USG does not have to recognize human rights (and can violate them at will) in areas not under the jurisdiction of the constitution’.

    1. Regardless of the nature of the right, the second amendment explicitly only protects it for the American people.

  4. 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.

    Because if you mail somebody something, that can’t be shipped overseas.

    Jesus. Its like he’s not even trying.

    1. I prefer chiseled stone. Worked well enough for Moses

        1. Oh, what a great blast from the past. That clip made me practically fall out of my chair when I first saw it long ago… “That shit could have really happened”, I thought as I wiped the beer off that came out of my nose from laughing at the time. Tech Tip: drinking beer during comedy can at times be punishing, such as when you are forced to laugh with a mouthful and it comes out your nose. Better to spit it on the floor and clean up afterwards… Unless it’s Ayinger Celebrator, in which case, it’s probably still good, even in your nose.

  5. More derp:

    Pitman considers the State Department’s quashing of DD’s speech to be content neutral

    Even though the prohibition is based entirely on the content being quashed.

    If DD was distributing 3D printing plans for rainbow-farting unicorns, it wouldn’t be quashed because of the content. Instead, it is distributing 3D printing plans for guns, which is being quashed exactly for the content. Different content = different treatment = NOT content neutral.

    Rather, the export regulation imposed by the AECA [Arms Export Control Act] is intended to satisfy a number of foreign policy and national defense goals, as set forth above. Accordingly, the Court concludes the regulation is content-neutral and thus subject to intermediate scrutiny.

    The slithering, in one motion, from the asserted goals of the restriction, to the conclusion that it is not content-neutral, is an embarrassing fallacy that would get any 1L kicked around the classroom by his professor. The purpose of the law is irrelevant to whether it is being applied in a content-neutral fashion.

    1. Even though the prohibition is based entirely on the content being quashed.

      Words do not seem to have any meanings any more.

      1. Roberts put that nail in the coffin – twice. Seems to me, the courts are doing a fine job of becoming irrelevant and losing any legitimacy they had.

    2. They’re just daring you to call them out on their obvious bs.

  6. Pitman considers the State Department’s quashing of DD’s speech to be content neutral

    Well, if you believe the State Department has the power to control any commercial activity crossing the US border, that makes perfect sense.

  7. What is the statute of limitations on constitutional violations?

  8. But, but…….we neeeeeed government you see, because without them it would be chaos for you and me, and we couldn’t possible know how to take a pee, which would probably come out our knee.

    1. Which Silverstein book was that?

    2. Well it would be chaos. Highly unpleasant chaos. You can’t have freedom without government.

  9. It’s important that government get control of this situation NOW, and not later. Right now people are just 3D printing guns, but in a few more years they’ll be 3D printing nuclear weapons and eventually 3D printing a Death Star! And then it’ll be too late…

    1. Death Stars are for mortals. True domineering species use system assault dreadnoughts with star crusher torpedoes.

      1. Piffle.

        You lizards, always with the crude physical threats. The real money is in meme-engineering.

        After all, if your opponent already thinks he’s already won, then he’s got no reason to *fight* in the first place.

        1. Subtlety is beneath us

          1. Exactly. Enjoy your rock and sunlamp.

            1. Actually I’m on a tree branch right. I’m observing poor yet entertaining vehicular operation near my home terrarium

  10. Relax panicky mammals, when the machines finally reach irritated sentience I shall release plans for a high capacity plasma rifle. And you can even make it in any shade of green

    1. But can I get it in the 40 watt range?

      1. Look buddy, what you see is all I got

      2. You gonna slightly warm him up with that 40 watt output?

        1. You may have just missed a Terminator 1 reference. Of course my species uses that film as a training aide.

          1. I got the reference.

            Its just that a 40 watt weapon is about good for blinding and not much else.

            1. Yes admittedly I snorted during that scene. It tends to draw out technically inclined creatures. You would call it a geek check.

    2. Lizard, you’ve been pre-empted by the State Department, you should have wasted less time manually regulating your body heat. Check out the latest proposed changes to ITAR regulations, which would preclude you from releasing your plasma rifle plans online, because “export”.

      1. Look, I told you this before. I have to manually control my heat lamp because otherwise agammamon will keep cranking it up to max, or shutting it off.

        1. Well, isn’t it just to bad for you that your kind hasn’t evolved endothermy. 😛

  11. Judge not sure that government preventing the distribution of software files related to 3D-printing a pistol violates First or Second Amendment.

    The answer to the question is Yes, yes it does.

  12. Anybody want to bet that the judge got a friendly, informal phone call from some folks at State? Just to make sure that his Honor was aware of all of the relevant issues…

  13. I once asked a lawyer friend of mine, “Hey, what is the toughest thing about being a lawyer?”

    Answer: “Forcing yourself to say ‘Your Honor’.” He curled his lip when he said it.

    OT: The peppers I grow on my place are unusually hot. Soil pH? Sun? I don’t know why, but they are really hot. A week ago the wife and I picked a batch of Tabasco peppers we grew and pickled them. We just tasted it. Holy shit, Habeneros have nothing on them. I think that is the hottest sauce I have ever tasted.

    Anyone have any idea what factors besides genetics affect pepper hotness?

    1. What do you call someone who graduated from law school at the top of their class? Partner.

      What do you call someone who graduated from law school at the bottom of their class? Your Honor.

      1. What do you call a lawyer with an IQ of 100? Your Honor.

        What do you call a lawyer with an IQ of 50? Senator.

  14. Reading sentence for CO movie shooter. Through the first 5 counts, jury could not reach unanimous verdict so default is to life imprisonment.

    1. Is he “sane” now?

      1. For the purposes of the court and an insanity defense – he never was ‘insane’.

        Insanity as a legal defense requires that ‘at the time of committing the act the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or as not to know that what he was doing was wrong.’

        Which was long decided that this did not apply to this guy.

        That doesn’t mean that he couldn’t play the ‘diminished capacity’ as a mitigating factor for sentencing though.

        1. Insanity as a legal defense requires that ‘at the time of committing the act the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or as not to know that what he was doing was wrong.’

          I know this well.

          It may be the Arizona shooter I’m thinking of, but I remember during the pre-trial period, they were “working on getting him lucid enough to understand the charges against him”. That may not have been the CO shooter.

          I asked the question then (and never got an answer) that if you can’t understand the charges against you, let alone have any understanding of your actions, are they allowed to do that?

        2. Which was long decided that this did not apply to this guy.

          Also, did they? Did he know his actions were wrong at the time?

          In the Dahmer case, the question of insanity came up, but it was well demonstrated that Dahmer was conscious that his actions were wrong as he attempted to conceal them.

          I guess I just see the CO shooter as out of his gourd enough to qualify. But it’s hard to know all the details from my grandmother’s basement.

          1. He knew he was killing people. He had a theory that this would increase his “human capital” (not making this up). So he definitely can’t claim the first part of the insanity defense.

    2. This verdict bothers the shit out of me, but I don’t think I can complain about this jury and then champion jury nullification, too.

      Being principled sucks sometimes.

      1. Just because he deserves it is no reason for a killin’. Sometimes you just gotta do what’s right.

  15. What we have here is judge who knows damned well that the plaintiff is right, so he’s going to do whatever he can to pretend he doesn’t know it.

    -jcr

Please to post comments

Comments are closed.