The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Law and Contemporary Problems published my new article, titled The Right to Code and Share Arms. Here, I discuss my five-year involvement with the Defense Distributed litigation. And the cases are far from over. Here is the abstract:
In 2014, I received an email out of the blue from Cody Wilson, the founder of Defense Distributed. The previous year, he had achieved international infamy for creating the world's first 3D-printed gun. In response, the State Department ordered him to remove from the internet the files that could be used to make that gun. Cody planned to sue the Federal Government for violating his rights under the First and Second Amendments, and for running afoul of federal export control law. And he wanted me to help.
Initially, I was skeptical. But after some research, I concluded that Cody had a strong case. I soon joined Defense Distributed's legal team, along with Matt Goldstein, an export control specialist, and Alan Gura, a constitutional litigator. We filed suit in 2015 in the U.S. District Court for the Western District of Texas. The next two years of litigation were quite exciting, largely unsuccessful, and mostly formulaic. The District Court denied our preliminary injunction. A divided panel of the Fifth Circuit affirmed. The en banc court split nine to five. And the Supreme Court denied certiorari.
Following the remand, however, the case took a positive turn. The District Court encouraged the parties to consider a settlement. Soon, we reached an agreement with the State Department. The Government would rescind the regulation that prevented Cody, and all Americans, from posting "technical data" about firearms to the internet. Or at least that was the plan.
On the eve of the settlement date, gun control groups and two dozen state attorneys general sought emergency injunctive relief to prevent Defense Distributed from posting the files online. Over the course of five hectic days, I would brief and argue four temporary restraining order (TRO) motions in four courts. I prevailed on the first three. The fourth court, alas, issued a global injunction that blocked our settlement. Prior to that decision, however, the files were available online and downloaded thousands of times. They remain readily available to this day.
This Article, written as the litigation continues apace, has three primary goals. First, it encapsulates the complicated, and somewhat confusing, posture of these cases. Second, this Article illustrates the folly, and indeed irrationality, of trying to censor the internet. Third, this Article explains how the political stigma of guns taints an important free speech issue that would otherwise receive widespread support.