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Can a Court Arbitrarily Conclude That 'Security' Overrules the First Amendment?

Company asks the Supreme Court to hear its case for being allowed to put 3D printing plans for guns on its website.

A 3D printer company founded by provocateur Cody Wilson, along with the Second Amendment Foundation, has filed for certiorari to the U.S. Supreme Court in a case asking that the company be allowed to post on its website instructions for using a 3D printer to manufacture a plastic gun.

Defense Distributed and the Foundation sued the State Department and other government persons and agencies back in May 2015 after the government threatened the company in May of 2013 for hosting the 3D gun manufacturing files.

Defense DistributedDefense Distributed

The government maintains that such files are essentially armaments in and of themselves and subject to existing laws against the export of such munitions, with posting them in a place where foreigners could access them constituting such an illegal export.

The plaintiffs have sustained a series of losses in lower courts attempting to get a preliminary injunction against the government. Their plaintiffs contends the government has violated the company owners' First, Second, and Fifth Amendment rights with its actions.

Most specifically in this cert petition they have asked the Supreme Court to answer these questions:

1. Whether a court weighing a preliminary injunction must consider a First Amendment plaintiff's likelihood of success on the merits.
2. Whether it is always in the public interest to follow constitutional requirements.
3. Whether the Arms Export Control Act of 1976....and its implementing International Traffic in Arms Regulations ("ITAR")...may be applied as a prior restraint on public speech.

The petition insists that in denying their request for an injunction, the Fifth Circuit Court of Appeals has taken a dangerous stance in balancing the First Amendment against government's insistence that it has very good reason to violate it.

It is also worth noting the files in question, although no longer hosted by Defense Distributed, are universally available on the internet from many other sources.

Defense Distributed is represented in this case by Alan Gura, who won two previous Second Amendment victories at the Supreme Court in 2008's Heller case and 2010's McDonald. Gura and his co-counsels argue in the petition the Fifth Circuit should not have been allowed to have:

simply declared that the government's asserted interests outweighed the interest in securing constitutional rights....considering the merits of preliminary injunction motions is not optional. Of all contexts, the merits cannot be optional in First Amendment cases. It should ordinarily go without saying—and so it must now be said—that federal
courts cannot dismiss the Constitution's primacy in our legal system...

The government can be relied upon to assert the necessity of every prior restraint. The public must be able to rely on the courts to test these assertions for constitutional compliance.

Gura argues the government's rules defining what falls under ITAR are completely ambiguous and confusing. The process for learning whether or not those rules apply to you is a similar mess of ambiguity and overreach. And the government's ability to stonewall drags out cases like that of Defense Distributed for years, Gura writes.

The petition also details the history of interpretation of ITAR over the past decades in the (proper) direction of not using it as a prior restraint on expression or speech on American citizens when it involves non-classified information.

The Fifth Circuit, in its decision on the appeal of an initial district court loss for Defense Distributed, was pretty blatant in saying the First Amendment doesn't count here because the government says so:

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.

Gura finds that assertion unsatisfying, leaning on a Fifth Circuit dissent from the panel's majority opinion. Dissenter Judge Edith Jones:

noted that "[i]nterference with First Amendment rights for any period of time, even for short periods, constitutes irreparable injury,"...and that "Defense Distributed has been denied publication rights for over three years,"...She then found it "a mystery" why the majority was "unwilling to correct" the district court's "obvious error" in applying only intermediate scrutiny to the content-based prior restraint at issue...

[Judge Jones believes the State Department's censorship of Defense Distributed] "appears to violate the governing statute, represents an irrational interpretation of the regulations, and violates the First Amendment as a content-based regulation and a prior restraint."

Jones also pointed out how weirdly ineffectual is the government's desired power to violate the First Amendment. The government admits stating or publishing that same information at a conference in the U.S., or in a domestic publication or library, would be protected speech if they somehow could insure no foreigners accessed it. Foreigners could, of course, access such information on the Internet, an act considered a blow against national security so severe it trumps the First Amendment. That is, if "foreigners can't hear this speech" is to be held as true and important, the power to restrict speech applies far beyond the Internet.

The Fifth Circuit's decision to ignore the First Amendment is dangerous far beyond the simple question of publishing files for printing plastic armaments on the internet, Gura argues. That decision:

has unsettled the established norms for adjudicating preliminary injunction requests. Gone is this [Supreme] Court's careful balancing test, with its reliance on the merits. In its place, a wholly arbitrary system: The court will consider the merits, when it wishes to do so. Whether the merits might reveal a constitutional violation is less important, because the court will enforce the Constitution only when it seems to be a good idea.

What are courts, attorneys, and the public to make of this innovation?

Critics of this or that opinion often allege that a court has followed an extra-constitutional agenda. For
a court to declare that it has done just that—in ignoring a content-based prior restraint no less—raises
basic questions about the judiciary's function. The public is left with no way of knowing when a judge would declare some interest more important than the Constitution, or even bother hearing the merits of plainly significant pleas to enjoin unconstitutional conduct.

Absent a merits inquiry, a court balancing the unknown equities is reduced...to declaring whether an abstract interest in constitutional rights is more or less important than an equally abstract government interest. And if the court then decides, as did the majority below, that security > freedom, that ends the matter. The logic is inescapable; where applied, it bars any injunctive relief.

Expressed that way, the danger of letting the Fifth Circuit decision stand should be clear even to Americans who don't understand why anyone, domestic or foreign, needs a computer file that helps them print a plastic gun at home.

The Supreme Court should take up the case, and let lower courts know they can't, absent a fair consideration of the merits, blithely decide that security beats the First Amendment in court.

Reason TV interviewed Cody Wilson of Defense Distributed last year:

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  • Charles Easterly||

    Can a Court Arbitrarily Conclude That 'Security' Overrules the First Amendment?

    What might that sound like if, rather than being decided by a court, the conclusion was spoken by an employee of "the state" through a sound system?

    I cannot now recall what I heard in the video for which H&R provided a link, yet I think the beginning of the seemingly authorized speech began with something similar to the following: "In the name of the Commonwealth...."

  • Quixote||

    To answer the question in plain terms, a court can overrule the "First Amendment" in whatever way it likes. Everyone knows the prosecutors and criminal courts have many ways of getting around this "free speech" nonsense when they need to. Surely no one here would dare to defend the "First Amendment dissent" of a single, isolate, so-called judge in our nation's leading criminal "parody" case? See the documentation at:

    https://raphaelgolbtrial.wordpress.com/

  • Don't look at me.||

    Plastic guns are for idiots. Flood the web with plans for faulty guns that don't work.

  • Telcontar the Wanderer||

    Swell idea!

    And while we're at it, let's flood it with fake instructions for growing marijuana! No more pot! And flawed recipes for cooking meth! No more meth! And fake lists of dating tips for gay men from Cosmo! No more sinning!

    Actually, just post the original list of Cosmo dating tips; a faked one might actually be more likely to help them hook up.

  • ||

    Plastic guns are for idiots.

    Idiots or geniuses. Certainly not the sort of thing you'd want just anybody picking up a spool of 'meh' plastic filament, printing out, and taking to the range.

    Which I think is why Wilson switched from 3D printing to CNC milled aluminum.

  • generalisimo14||

    Use the plastic gun to take a real one from a SS troopers corpse (after you used it to make the corpse) then you have a battle effective weapon. That was the thought behind the original "liberator" dropped in Nazi occupied Europe at least.
    Cody is just effin with these boobs, the cat is out of the bag. Legislation will have a nominal effect on control of the info, if any. It is about power and obedience, but you knew that already, OBEY!

  • Tionico||

    Yup.. He's jigging for the stupid fish, those plans are readily available from sites all over the world. They are essentiallly public domain at this point. And He knows it. He's playing DoJ and the courts for the corrupt fools they really are.

    Lets hope he and Gura make them the obvious monkeys they are. Their meme about 'national security" is a joke.

  • PeterYoung4LP||

    The first amendment must be kept in tact. Disallowing these plans to be published on clearnet won't stop the distribution of the plans. It would put these plans in the wrong hands, and keep the right hands off of them, just like most firearm laws.

  • Tionico||

    pray tell just WHO have the "wrong hands" for these plans to occupy? What specific groups? Hamas? ISIS? the British common man, defenseless now these many years and weary of it? "Refugees" fleeing their "homeland" for a "better life" elsewhere? ¿Mexican droguistas? The Venezuelan public starving in his own home? Chicago gangbangers?
    Come on, WHO are "the wrong people" for this toy gun?

  • Telcontar the Wanderer||

    A .380 ACP traveling at 750 FPS from an acetone-washed ABS barrel is not a "toy". And if it hits your Level-IV-armored, M4-toting, NV/AN-PEQ-equipped Warfighter in the face from 15 feet away... That's quite an investment you've just lost there.

  • Red Twilight||

    What reason.com so desperate that they cannot focus on issues they used to do multiple articles on Bharara?

    http://thehill.com/policy/cybe.....mp-website

  • Don't look at me.||

    Do people still use their real names and no vpn?

  • colorblindkid||

    Don't be that guy and list random news stories that just happened and complain it's not being reported. Do you honestly think Shackford and Reason wouldn't cover this fucking topic? This isn't fucking CNN with bullshit "breaking news" updates every ten minutes.

    Reason is what it is because they don't just jump on every single story the instant it happens with hot takes and bullshit. Shackford was probably in the middle of writing the story as you commented this. And hey, look, he posted a story already.

    You're a fucking idiot.

  • Juice||

    Can you publish a recipe for crystal meth? How about plans for an atomic bomb? Instructions on how to kill someone without leaving a mark? The list goes on and on. How are instructions for 3D printing a gun any different?

  • Don't look at me.||

    Because gunz!

  • BestUsedCarSales||

    I don't know about the others, but at least for number 3 there if you publish that information you will be hunted down by the Ghost-Faced Killer and your instructions wiped from existence.

    So, that's outside the bounds of normal 1st Amendment law.

  • Cyto||

    No, they only do that if you reveal the secret to a magic trick. Those Magic Circle guys don't play. Their motto isn't indocilis privata loqui for nothing!!

  • n00bdragon||

    Yes, you can publish a recipe for crystal meth. No, you can't publish plans for a nuclear bomb because of the same ITAR problem (which, as pointed out by the article, is retarded). Yes, you can publish instructions on how to kill someone without leaving a mark. Up until about twenty years ago you couldn't even publish math problems that were too hard for the government to solve in a timely fashion.

    Rules about what you can and can't publish and the whole idea of "forbidden information" is toxic to democracy, justice, and freedom. It's essentially Thoughtcrime. Once you make a very idea illegal, then any way of gaining or possessing that idea can be illegal, and once you've gotten there it's a hop skip and a jump from mass graves.

  • Cyto||

    Better question: Can you publish the recipe for sudafed? Because I'm tired of having to get finger printed and give a DNA sample every time I get a stuffy nose. I just want to buy some cold medicine that actually works. I don't really need to be in some DEA database and being read by some agent who is trying to decide if 12 sudafed pills in 3 weeks is enough to warrant a no-knock raid on my house.

  • Rat on a train||

    That is the real meth scourge.

  • pedz||

    Not to be flip but if it is patented, then that should contain a significant percentage of the instructions. If it isn't patented, then I bet some index (Merck?) would have information.

    The problem might be in getting the base ingredients without permits and "oversight".

  • Bubba Jones||

    Order 10 lbs from the Sigma chemical catalog

  • Tionico||

    learn to use essential oils. I use them for the same things you describe. They WORK, are cheap, harmless, except to the bacteria, viri, fungi they kill. I find them very effective for stuffed head, sinus infections, skin rashes, fungal iinfections, sore throat, asthma, hayfever, colds, bronchitis, ear infections.... buy them many places, cash on the counter, no record, no ID no background check. And they don't trash other essential organs like kidneys, liver, spleen, pancreas, lymph system.

    Kick Big Pharma to the kerb and leave them there. Put your saved money into a retirement account. Haven't bought a scrip in at least ten years......

  • DJK||

    Re: nuclear bombs, not exactly true. You can't publish classified documents describing the bomb. But you can publish plans drawn up from a decent understanding of the physics and reasoning out how it would have to work. See United States v. The Progressive (I think). The case was never litigated to completion, but many believe that the government dropped it because they had little chance of winning.

  • Bartleby||

    This should illustrate exactly how absurd this case is and why it never should have made it through any court:

    Do it Yourself Submachine Gun

    This book contains complete instructions for building a fully automatic 9mm sub-machine gun. You can buy it on Amazon for God's sake.

    This is simply tail chasing from a legal perspective. It's real purpose was to sell 3D printers and boost the stock of 3D Systems and other printer vendors.

  • Cyto||

    The answer to the headline's question is hinted at in your list.

    The first amendment does not contain exceptions for Methamphetamine. Nor does it contain exceptions for weapons. Nor for self-defense tactics. The list goes on and on. In fact, the first amendment is very, very clear.

    It says congress shall make no law. Not "some law, if we really, really think it is important." Or, as is more relevant here, "not really make a law but have some bureaucratic functionaries define the law to mean what they'd like".

    Pretty much all of first amendment law is an artifice built upon a lie. The plain language of the constitution prohibits federal government restrictions on speech. Full stop, no exceptions. The "obscenity" exception is clearly unconstitutional. It isn't even close. The "national security" card at least has some merit - as in spying for the enemy wouldn't rightly be protected speech. But "how to build this sort of weapon that might be used by our enemies" is much fuzzier. And labeling encryption algorithms a munition is just laugh out loud unconstitutional. Somewhere in between is instructions for making weapons that might possibly be a security threat, but not so much from foreign armies. Like a plastic gun.

    Because if you happen to be an american citizen living in america, not only do you have the right to free speech, you also have the right to keep and bear arms. So a constitutional double dose of protection.

  • Qsl||

    I could easily see the government putting pressure on companies via their service agreements to eventually circumscribe speech through NDAs, community standards and the like (not much different than how domestic spying was contracted out to foreign countries). In the end, it matters less what the law says than its enforcement, and apparently checks and balances ain't all that it is cracked up to be.

    Long term, I see most free speech issues falling in line with piracy concerns- everybody does what they like, a few unlucky souls get made examples of, and a blackmarket of specifications gets traded around. The lie of free speech isn't that you can't say what you want (that has always been available), but you could do so without consequences.

    We'll see if unregulated markets address this better or worse.

  • Jerryskids||

    Ordinarily, of course, the protection of constitutional rights would be the highest public interest at issue in a case.

    Some people might say the protection of constitutional rights is the highest governmental interest as well. In fact they might say that the whole reason governments are instituted among men is to secure these rights. (And that governments derive their just powers from the consent of the governed and whenever a government becomes destructive of this end it is the right of the people to alter or abolish it and replace it with one more likely to effect their safety and happiness.)

  • Cyto||

    Ok, alt-right skinhead. Please report to Anita Sarkesian for re-education.

  • techgump||

    Consent of the governed... Lol. Consent is volentarily. There's nothing consentual about Govt enforcement. Governing, by nature, is about limiting consent.

  • rudehost||

    Outside of the fact the constitution does not have an "Unless the government says its really important clause" I wonder exactly how letting foreigners learn how to print plastic guns is somehow a threat to our national security. Wouldn't it be more effective for say ISIS to just buy guns rather than printing them out of the same crap they make action figures from?

  • Cyto||

    Shhh..... ISIS might be listening.

    Or ISIL. Dang. Which one is it this week? ISIS? ISIL? ISIS/L??

    Whatever. Telling them they can buy guns on the open market might be providing material aid to terrorists. I don't know. They won't tell us exactly what that means. But if you do it, you are an enemy combatant. Just keep that in mind.

  • Cyto||

    The public is left with no way of knowing when a judge would declare some interest more important than the Constitution, or even bother hearing the merits of plainly significant pleas to enjoin unconstitutional conduct.

    This right here is the place where they left the reservation, some 200 years ago. As soon as they decided "the constitution is not a suicide pact" and allowed the government to claim powers not granted in the constitution as long as there was a "compelling government interest", the battle was lost.

    This decision making power is nowhere to be found in the constitution. In fact, the constitution quite explicitly says this is not the case. It makes a very specific list of what the government may do. It then explicitly says that anything not on this list is outside the scope of the federal government's purview.

    But the first time they ran in to a conflict between what made good common sense and was important for the government to do, yet was outside the enumerated powers..... they caved. They should have forced the government to obtain a constitutional amendment, but they didn't. And we've been paying for that choice ever since.

    The entire point of having a constitution was so that they couldn't grant themselves new powers - even when it was really important - with a simple majority vote. But they forgot that before the ink was dry.

  • brec||

  • Hank Phillips||

    Too bad there wasn't a Reason Magazine when La Suprema Corte ruled that kidnapping youths as cannon fodder to meddle in foreign wars to which banks made loans is [get this!] NOT involuntary servitude. With that kind iv stare decisis on the books alongside the Dred Scott decision, you expect the starry banner iv freedom to rally to individual rights?

  • Carlos Inconvenience||

    Meanwhile, Reason is clutching its pearls and demanding to know why Trump didn't do enough to stop the Alt right in VA.

  • Rich||

    The government maintains that such files are essentially armaments in and of themselves

    What's the government's position on files of info for building 3D printers?

  • Dan S.||

    Didn't we have the same discussion (ITAR v. First Amendment) regarding encryption software? That never actually got to the Supreme Court, did it?

  • Longtobefree||

    "Can a Court Arbitrarily Conclude That 'Security' Overrules the First Amendment?"
    Absolutely. They just did.

    The real question is will that ruling be allowed to stand, and if so, is there anyone left willing to use the second amendment to protect the first?
    My money is on no.

  • ||

    What's surprising about this case is the court was so blatant about what they normally do in other cases. Courts fail to do their jobs all the time.

  • strat||

    This is exactly the same nightmare into which we ran back during the "crypto wars." It actually took a brilliant soul asking for a commodity jurisdiction approval for a floppy disk with software on it, and another for a book with identical content, printed in a machine-readable typeface, for the inconsistency to finally be addressed.

  • SamHell||

    I almost ordered one of Cody Wilson's little anarchy boxes last winter but the wife said she didn't want gunfights when the the man came around, so I just drink more now :(

  • Bartleby||

    This should illustrate exactly how absurd this case is and why it never should have made it through any court:

    Do it Yourself Submachine Gun

    This book contains complete instructions for building a fully automatic 9mm sub-machine gun. You can buy it on Amazon for God's sake.

    This is simply tail chasing from a legal perspective. It's real purpose was to sell 3D printers and boost the stock of 3D Systems and other printer vendors.

  • Tionico||

    Gummit been drinking their own KoolAde.

    It is beyond belief that these "intelligent" and "mature" dweebs actualy believe that some foreigners accessing those files and printing themselves up a few dozen of these cheap throwaway weak innacurate guns could actually pose a threat of any signficance to our national security. Just about anyone "offshore" with some bux and connections can buy AK's and other battle rifles, real semiauto handguns of durability and accuracy, and a few things in between, for very little cash each. WHY would they bother with these cute and cuddly toy guns? The US Attorne=ys have some splainin to do.

    They're on a whinge about control, not about national security.

  • CMurph||

    Plaintiff:
    "It should ordinarily go without saying—and so it must now be said—that federal courts cannot dismiss the Constitution's primacy in our legal system..."
    -
    But that is exactly what judges "can" do, and the contradictory ink on paper (U.S. Constitution in this case) is actually useful to our rulers' dictatorial ends. They use the ink to perpetuate a facade to the people--the lie that judges and rulers are respectful of our interests.
    -
    Judge:
    "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."
    -
    The above statement is in direct violation of the Judge's oath of office to uphold the U.S. Constitution. The judge deserves immediate and certain impeachment!
    -
    In truth, our "system" perpetuates the rule of people exactly as rule and control has existed throughout human history. Exerting power over people always comes down to people in power doing whatever the people will let them do. In this case, we have judges who simply rule as they please too. It doesn't matter that they have the "letter of the law" (ink on paper) completely backwards here. They only need to convince people to permit them their rule, irrespective of the ink, which is often accomplished by creating nice and comforting new ink to be consumed by the brainwashed ink addicts!

  • AD-RtR/OS!||

    Courts can decide anything,......just ask them.

  • حظك اليوم||

    nice article , thanks ..

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