Libertarian-leaning Republican Rep. Thomas Massie of Kentucky and 14 other congresspersons Thursday filed an amicus brief for the plaintiff in the case of Defense Distributed v. U.S. Department of State.
It's a case I've been reporting about from its beginning in May to a recent failure to enjoin the government from its speech-quashing actions while the case proceeds. An appeal of that refusal to enjoin the government is now at the Fifth Circuit Court of Appeals.
The case involves government use of the Arms Export Control Act (AECA) by the State Department under its ITAR (International Traffic in Arms Regulation) to order Defense Distributed (DD), the entity under which Cody Wilson and partners spread CAD files that instruct 3D printers to make a plastic pistol, to cease spreading those files or be prosecuted as an illegal exporter of, essentially, highly sensitive technical data related to munitions.
The amici in Thursday's filing start by noting that:
Members of Congress have a particular interest in seeing that federal statutes are properly interpreted and implemented. Moreover, Members of Congress are bound by oath to support and defend the Constitution…..
Representative Thomas Massie, of Kentucky—an MIT-trained engineer and inventor—is a Member of the Committee on Science, Space & Technology. His views are particularly relevant because the State Department's improper and unconstitutional interpretation of federal law is likely to chill scientific and technological advancement in the United States.
Massie and his colleagues go on to argue that, beyond the merits of Defense Distributed's challenge to how the State Department's actions are harming its First, Second, and Fifth Amendment rights (which the amici agree it does, and believe DD should win on those grounds), interpreting ITAR as allowing them to quash DD's speech involve a use of agency power not justified by the actual law:
[AECA] says nothing about the regulation of domestic public speech. Rather, the statute authorizes the President, "[i]n furtherance of world peace and the security and foreign policy of the United States . . . to control the import and export of defense articles and defense services and to provide foreign policy guidance to persons of the United States involved in the export and import of such articles and services."…
This straightforward statutory language does not permit the State Department to ban the domestic publication of unclassified public speech through its current expansive interpretation of the word "export" and application of ITAR…..The word "export" in particular, which is the entire basis of the State Department's position, simply cannot be stretched to mean domestic publication with incidental receipt by foreign persons….
[The State Department's order to DD] captures purely domestic discussions between Americans in America simply because those discussions were undertaken by means of the internet rather than on paper, or orally, or by any other method. To interpret "export" to mean "publish on the internet to the general public" simply does not comport with the common meaning of the word.
The brief goes on to show that State Department positions in previous court cases and its own internal memoranda support that notion that AECA does not give them the power to order DD to not communicate in America to Americans, just because the communication went over the Internet.
The brief further argues that if the law gave them that power, then the law itself is unconstitutional absent some greater nexus with foreign commerce.
Massie and his colleagues end with the pragmatic point that:
Chilling the speech of actors like Defense Distributed by imposing export controls on them that were never meant to apply domestically will slow innovation in the United States and leave the field to other countries.
From Massie's press release about the brief, he notes his co-signing congressional colleagues:
include Duncan (R-SC), Gosar (R-AZ), Webster (R-FL), Labrador (R-ID), Conaway (R-TX), Rokita (R-IN), Farenthold (R-TX), Posey (R-FL), Miller (R-FL), Babin (R-TX), Jones (R-NC), King (R-IA), Fleming (R-LA), and Kelly (R-PA).
The plaintiff's lawyer is Alan Gura, who won both modern landmark Second Amendment cases before the Supreme Court, 2008's D.C. v. Heller and 2010's McDonald v. Chicago. This reporting from me sums up Gura and his team's arguments.
I interviewed Massie as part of a roundtable of liberty-minded congressfolk in March 2013.
UPDATE: Links to some other amici brief in the case filed this week, from the Reporters Committee for Freedom of the Press, Electronic Frontier Foundation, Madison Society Foundation, and Cato Institute.