In September, as Scott Shackford reported, a three-judge panel of the 5th Circuit Court of Appeals denied a motion to enjoin the State Department from censoring the American organization Defense Distributed. The Department back in 2013 threatened them with prosecution for hosting computer files that instruct 3D printers to make a plastic pistol, one the company calls "The Liberator." Defense Distributed have since then complied with the department's demand.
Provocateur and author Cody Wilson, who runs the organization and built and fired the first 3D-printed plastic pistol (I profiled him in a Reason feature in 2013), believes that State Department threats to treat hosting such files as the equivalent of exporting illegal munitions amount to a prior restraint violation of their First and Second Amendment rights.
His arguments are detailed in my May 2015 reporting on the launch of his lawsuit against them and a variety of specific officials involved in defense-related trade controls. (The Second Amendment Foundation is also a plaintiff in the suit.)
Defense Distributed's legal team, including Alan Gura (who has won two substantial victories for the Second Amendment at the Supreme Court), filed on Friday a petition to the Fifth Circuit for an en banc rehearing (before the entire Court, not just a three-judge panel) of the injunction request.
The original panel declared that since:
national security might be permanently harmed while Plaintiffs-Appellants' constitutional rights might be temporarily harmed strongly supports our conclusion that the district court did not abuse its discretion in weighing the balance in favor of national defense and national security.
That decision was not an end to Defense Distributed's suit against the State Department, merely (for now) stopping them from enjoining the Feds from enforcing their demands while the original case proceeds.
The new filing's arguments, quoted and summarized:
Never before has a federal appellate court declined to enjoin a content-based prior restraint on speech while refusing to consider the merits of a First Amendment challenge…The panel majority's novel decision contradicts a long line of established Supreme Court and circuit precedents governing constitutional claims and injunctive relief—including decisions of this and all other regional federal circuit courts of appeal.
The request for rehearing goes on to list a series of precedents supporting this contention, and jabs at "The majority's remarkable holding that the Government may serve the public interest by violating the Constitution…."
The filing goes on to note that the government's novel application of the law to Defense Distributed is tantamount to claiming "that to speak on the Internet is to 'export' speech. And because Plaintiffs' speech relates to guns, it's deemed to be an arms export requiring a license."
The Defense Distributed team thinks it was unkosher of the lower court and the three-judge appeals panel to have refused to consider "the question of whether Plaintiffs-Appellants have demonstrated a substantial likelihood of success on the merits" in the underlying case.
While the International Traffic in Arms Regulation (ITAR) laws indeed prohibit certain non-physical "technical data" from being exported willy-nilly, this filing notes "Export" is "statutorily undefined":
"Technical data" is plainly speech, and it often relates to many applications. Computer science tutorials may advance civilian as well as military purposes. Drone blueprints might assist wedding photography as much as battlefield management. Gun designs may be as useful to civilian gunsmiths and shooters as they are to soldiers. Accordingly, for nearly forty years, the Executive Branch had warned that using ITAR as a prior restraint on the dissemination of privately generated, unclassified information violates the First Amendment.
Based on a 1978 Ninth Circuit case, U.S. v. Edler Industries, Defense Distributed says that enforcing ITAR in such a situation requires that "the defendant must know or have reason to know that its information is intended for the prohibited use" and that enforcing it in other situations "would raise 'serious constitutional questions.'"
In seeming contradiction to that notion:
a week before opposing Plaintiffs' preliminary injunction motion, Defendants proposed to amend ITAR to "explicitly set forth the Department's requirement of authorization to release information into the "public domain." [such that] "Posting 'technical data' to the Internet without a Department or other authorization is a violation of the ITAR even absent specific knowledge that a foreign national will read [it]….Though the Interim Final Rule omitted this language…Defendants maintain and defend their prior restraint against Plaintiffs.
The existing punishment for "unlicensed publication of ITAR-controlled speech" can include a fine of over a million dollars and 20 years in prison.
The filing stresses that a proper decision regarding the injunction request must consider the merits of the First Amendment argument:
"In deciding whether to grant a preliminary injunction, a district court must consider whether the plaintiffs have demonstrated that they are likely to prevail on the merits." (Ashcroft)…This is only logical. If the court has no idea whether or which of the plaintiffs' claims are valid, it cannot assess the harm, balance the equities, or grasp the public interest…
"In the First Amendment context, the likelihood of success on the merits is the linchpin of the preliminary injunction analysis . . . [it is] incumbent upon the district court to engage with the merits before moving on to the remaining prongs of its analysis." (Sindicato Puertorriqueño de Trabajadores).
The filing has many other citations on that point, from various appeals circuits. It points out the contrary precedent the 5th Circuit panel relied on was a 1982 trademark case, Southern Monorail Co. v. Robbins & Myers, Inc., which the Defense Distributed team thinks is not relevant or analogous to theirs.
The panel rejecting the injunction request did note that:
Ordinarily, of course, the protection of constitutional rights would be the highest public interest at issue in a case. That is not necessarily true here, however, because the State Department has asserted a very strong public interest in national defense and national security.
Defense Distributed's legal team mocks that reasoning:
Would the public interest elevate the police's "asserted" crime-fighting interests over the Fourth Amendment? After all, more
Americans are harmed by domestic criminals wielding factory-produced guns than by imaginary foreigners carrying 3D-printed guns
The legal team concludes:
If the Court is unprepared to do away with preliminary injunctions to secure the right of free speech, it should conform its decisional law to the Supreme Court's requirements and adopt the standards applied in the other circuits. Rehearing en banc should be granted.
Bonus: a gem from a dissent by Judge Edith Jones in that original three-judge panel, originally reported by Scott Shackford:
Undoubtedly, the denial of a temporary injunction in this case will encourage the State Department to threaten and harass publishers of similar non-classified information. There is also little certainty that the government will confine its censorship to Internet publication. Yet my colleagues in the majority seem deaf to this imminent threat to protected speech. More precisely, they are willing to overlook it with a rote incantation of national security, an incantation belied by the facts here and nearly forty years of contrary Executive Branch pronouncements.