BOTH A DEFEAT FOR FREE SPEECH AND A WIN FOR GUN-CONTROL ADVOCATES

If printing guns is legal, so is distributing the plans

By Noah Feldman

Bloomberg View
September 21, 2016

Can the government block the online publication of files that let anyone make an assault rifle on a 3-D printer? In a defeat for free speech and a win for gun-control advocates, an appeals court has said yes. The court declined to suspend a State Department regulation that treats posting the files as a foreign export of munitions. Although the impulse to block the easy creation of untraceable weapons is admirable, the court got it wrong. The First Amendment can’t tolerate a prohibition on publishing unclassified information -- even if the information is potentially harmful.

Defense Distributed is a nonprofit group devoted to “promoting popular access to arms guaranteed by the United States Constitution.” It wants to distribute free online the computer-aided design and text files that would enable anyone with access to a 3-D printer or a computerized mill to make the crucial component of an AR-15 rifle, the semi-automatic version of the military’s M16.

It’s not a fantasy. Defense Distributed has already given away files that allow a user to print a single-shot pistol called the Liberator. And the lower receiver of an AR-15 -- the indispensable, regulated part of the gun that bears its serial number -- can be made totally functional in plastic. Thus, the CAD files would allow anyone with a 3-D printer to make an untraceable AR-15.

It’s legal right now for Americans to 3-D print weapons, including the AR-15. And it would almost certainly be legal for Defense Distributed to hand out its files to Americans within the U.S. But the organization wants to post the files online for easier distribution.

That brought the attention of the State Department, which is in charge of regulating U.S. arms sales abroad under the Arms Export Control Act. The department says the files are technical data relating to items on the U.S. Munitions List, which cannot be “exported” abroad in the form of online posting without the department’s approval.

Defense Distributed sued, joined by the Second Amendment Foundation. It asked a federal district court to issue a preliminary injunction that would bar the State Department from enforcing its regulations against the posting of the files.

In essence, the gun-rights advocates say that the State Department regulations amount to what’s called a “prior restraint” on speech -- a ban on talking before you’ve even said anything. Prior restraints are profoundly disfavored in First Amendment law as a barrier to the free flow of ideas.

The district court refused to issue the injunction -- and on Tuesday a divided panel of the U.S. Court of Appeals for the 5th Circuit issued an opinion upholding the district court’s decision.

The appeals court’s reasoning was basically that, at the preliminary injunction stage, a court needs to weigh the potential irreparable harm to the party seeking the injunction against the public interest on the other side. The panel concluded that the district court didn’t abuse its discretion in concluding that the State Department’s public interest in avoiding the export of technology for untraceable weapons is more important than the free-speech rights of Defense Distributed.

The court acknowledges that denial of First Amendment rights is usually such an important interest that it would trump almost any other. But it said “that is not necessarily true here, however, because the State Department has asserted a very strong public interest in national defense and national security.”

Weighing the relative interests, the panel then said that if Defense Distributed eventually wins its case, it will be able to post the files online having suffered only the temporary harm of delay. But it said the government’s interest in preventing publication before an eventual judicial decision is greater, because once the files are available online, the cat can’t be put back in the bag -- the information will be out there.

That sounds superficially convincing. But it really isn’t. It’s totally unreasonable that information that could be made legally available within the U.S. to American citizens can’t be posted online because it counts as an “export” for purposes of regulation. Even if that were the meaning of the State Department regulation, it would violate the First Amendment as a content-based regulation on speech.

The government is allowed to prohibit speech on the basis of content only when there is a compelling government interest and the law is narrowly tailored to achieve it. Conceivably there might be a compelling interest in prohibiting the publication of some technical information that allows the creation of weapons, such as a recipe for building a nuclear bomb. But plenty of information about building serious weapons already exists in the world -- weapons as dangerous as an unregistered and untraceable AR-15.

What’s more, Congress in its wisdom hasn’t prohibited Americans from making their own AR-15 parts at home. The fact that the conduct is legal is an overwhelming reason to conclude that directions on how to do it can’t be prohibited without violating freedom of speech.

Judge Edith Jones said as much in dissent. I don’t agree with Jones, a Ronald Reagan appointee, that often, but when you’re right, you’re right. She pointed out that the panel never squarely addressed the question of Defense Distributed’s likelihood of success on the merits in upcoming litigation.

When free-speech rights are in the balance, a long delay in publication is as good as the denial of the First Amendment. Defense Distributed has already been prohibited from speaking for three years.

To be sure, I don’t like what Defense Distributed is planning to say. Giving out the recipe for making untraceable weapons can’t be good for the world. But not every potential wrong can be repaired by invoking national security and suppressing speech -- not so long as we have the First Amendment.