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."