The PJ Tatler

Are 3-D Gun Plans Considered Free Speech?

On Wednesday, Cody Wilson and his gun manufacturing advocacy group, Defense Distributed, filed a lawsuit against the State Department and several officials for violating their First Amendment right to free speech by prohibiting them from publishing their 3-D printing instructions for a 3-D gun called the Liberator. “In their complaint, they claim that a State Department agency called the Directorate of Defense Trade Controls (DDTC) violated their first amendment right to free speech by telling Defense Distributed that it couldn’t publish a 3-D printable file for its one-shot plastic pistol known as the Liberator, along with a collection of other printable gun parts, on its website.”

3D liberator

The DDTC referenced the International Traffic Arms Regulations (ITAR), which regulates the sale of firearms outside of the United States.  According to the government, under ITAR Wilson publishing printing instructions on the internet is basically the same thing as shipping weapons overseas.

“The internet is available worldwide, so posting something on the internet is deemed an export, and to [the State Department] this justifies imposing a prior restraint on internet speech,” says Alan Gura, the lawyer leading the lawsuit, using the legal term “prior restraint” to mean censorship of speech before it’s published. “That’s a vast, unchecked seizure of power over speech that’s…not authorized by our constitution.”

“If code is speech, the constitutional contradictions are evident…So what if this code is a gun?” asks Cody Wilson, Defense Distributed’s founder, a radical libertarian who dropped out of the University of Texas law school to run the firearms access group. “Nothing can possibly stand in the way of this being disseminated to the people, and yet they insist on maintaining the power to do so.”

And this isn’t the first time ITAR has been used in a controversial way. When I say “controversial,” I mean way overstepping its bounds.  In the 1990s, cryptographers were threatened when they posted encryption tools and software on the internet because encryption was considered a “military munition.” One cryptographer, Dan Bernstein, sued the State Department and won when he claimed his First Amendment rights were violated because he was investigated and threatened with prosecution after posting encryption tools. “But while government lawyers appealed the case, control of encryption software exports was moved from the State Department to the Commerce Department and then protected by a new exception, preventing Bernstein vs. the United States from proving ITAR unconstitutional on first amendment grounds.”

The suit also alleges violations of the Second Amendment and the Fifth Amendment by the State Department. The Second Amendment violation is pretty obvious, as prohibiting instructions for manufacturing 3-D guns relates to the right to keep and bear arms.

The Fifth Amendment addition is interesting and one all too familiar to those acquainted with government overreach. Writes Wired,  “it claims that its staff had their right to ‘due process’ violated. No government agency, it says, can hold the threat of prosecution over Defense Distributed’s head without even a decision on whether its publications are illegal or not—and without a time limit on when it must make that decision. Defense Distributed says it asked the DDTC for ITAR approval to publish the gun files after receiving its letter, and have waited two years without response.”

The government loves to slow-walk its questionable harassing of citizens.

But, the original interference by the State Department has only accelerated the dissemination of the plans. They may not be posted on the Defense Distributed website but they are all over the torrent sites.  In fact, there were over 100,00 downloads in two days when this witch hunt began.

Matthew Goldstein, the ITAR expert on Defense Distributed’s legal team, explained, “You just can’t do this. You can’t punish someone for speech just because someone believes that speech could be used for bad stuff…If you even just think about all the reposts, it’s a mess.  It’s like grabbing at particles of smoke.”

Indeed.

Today, there is a growing number of people wanting to qualify the First Amendment if they don’t like how it’s being used.  Do we consider instructions on how to do something “bad” outside the scope of the First Amendment?