Is Gun-Printing Software Protected Speech?

Defense Distributed is back in court.

Defense Distributed, a company whose hardware and software allow users to make guns at home, is once again locked in battle with the government over its First Amendment rights.

The business's products let people "print" guns in 3D, but Defense Distributed doesn't make or sell actual firearms. Nevertheless, in 2013 the government ordered the company to stop distributing its software files on the grounds that spreading such information was equivalent to the unlicensed export of munitions.

Led by founder Cody Wilson, who in 2013 built and fired the first plastic gun made on a 3D printer, Defense Distributed sued in 2015, claiming that the software was First Amendment–protected speech, no different from any printed manual or book containing gun-making instructions. The software was already all over the internet and no one else had been threatened with legal penalty for sharing it.

The federal government settled its case this July, explicitly permitting the company to distribute its wares—but 18 states and the District of Columbia have reopened the challenge on the grounds that the government's concession violated an arcane aspect of the Administrative Procedures Act. The suing states, which were not parties to the original lawsuit, also claim that their 10th Amendment rights to implement their own gun policies were violated.

The constitutional claim holds little water. The federal government choosing not to outlaw something a state wants prohibited has never been thought to raise serious 10th Amendment issues; a state can still try to pass whatever gun control it wants, with only the courts to potentially tell it nay. Yet shortly after filing, the suing states won a temporary restraining order (TRO), and then a preliminary injunction, from a federal judge in Washington state. Defense Distributed was again compelled to stop distributing its files.

Because the federal government chose to settle, the courts have yet to decide whether the software files count as speech under the First Amendment. Josh Blackman, one of Defense Distributed's lawyers, argued in one of his filings that the TRO constitutes "a prior restraint of constitutionally protected speech that is already in the public domain."

The injunction against Defense Distributed is preliminary, which means the final fate of the government's settlement still needs to be hashed out in court. Whether the relevant judges will recognize the clear First Amendment question at play both matters and doesn't. No one should have his free speech rights squashed by the state—but the government also can't silence everyone. These gun-making files are everywhere, whether policy makers like it or not.