International Legal Affairs: V10N6
Defense Distributed: The Final Chapter?
Frequent readers of this column will note that we’ve been following the Defense Distributed case since inception and originally noted that this was a First Amendment and Freedom of Speech case versus over-reaching Government regulation.
The ability to regulate speech in the United States is very difficult. We noted back in 2015 that there are generally two ways in which free speech within the United States may be restricted. Regulations may be imposed upon the time, place and manner of expression, but the restrictions imposed must be content-neutral, the restrictions must be narrowly tailored to serve a significant government interest, and the restrictions must leave open ample alternative avenues of communication.
Restrictions on content (as were contemplated by a 2015 U.S. State Department proposed regulatory change to the ITAR and pursued by the U.S. State Department within its regulatory enforcement action against Defense Distributed) may have been permissible if the restriction passes “strict scrutiny.” Strict scrutiny requires the government to show that the restriction serves “to promote a compelling interest” and that the restriction is “the least restrictive means to further the articulated interest.” We predicted back in 2015 that “[it] is unlikely that DDTC can overcome the strict scrutiny threshold under the current proposed regulation language.” It should come as no surprise that the U.S. State Department backed off from its enforcement action and agreed to dismiss all litigation related to the case.
One would think that following the settlement, that would be the end of the case. Unfortunately, Attorney Generals in eight U.S. States (apparently) did not pay attention in law school and have filed additional litigation against Defense Distributed to prohibit the online publication of the programs needed to 3-D print a firearm. This article will predict now–as it did in 2015–that the eight States that filed litigation cannot prohibit this type of speech.
Recall that the eight Attorney Generals are seeking to prohibit the online publication of Defense Distributed’s software. From a technical standpoint, the very thought that the internet could be restricted is ludicrous. From a legal stand point, the current litigation is nearly exactly the same argument as the U.S. State Department’s argument–that there should be a restriction on the content that Defense Distributed is publishing online.
Acceptable First Amendment restrictions on content include defamation, fraud, obscenity, child pornography and threats. Not surprisingly, there are no restrictions on the print publication of the Anarchist Cookbook, The Improvised Munitions Handbook (FM 31-210), or any number of books published on how to manufacture a firearm, whether from common materials found around the home or via the use of complex machinery. The online publication of Defense Distributed’s software is no different from the print version of a similar book.
Recall that these types of restrictions must pass a “strict scrutiny” analysis. Would a prohibition on the online software serve “to promote a compelling interest?” Is the proposed prohibition “the least restrictive means to further the articulated interest?” In both cases, the answer must be no. Manufacture of a firearm by an individual within the United States is not illegal. While some states (like California) require homemade firearms to be registered, most states have no restrictions on the manufacture of firearms made for personal use. There are no such restrictions on the manufacture of firearms for personal use in Federal law. Simply, there is no compelling interest to prohibit an activity that is otherwise legal.
Is “the least restrictive means to further the articulated interest?” In simple terms, no. The internet is very difficult to regulate. It would be impossible to prohibit the online publication of the Defense Distributed code within the eight states that take offense. If Defense Distributed were prohibited from publishing its code in the eight states that take offense, such a prohibition would effectively ban publication (by Defense Distributed) worldwide. Once released, the information has been copied and shared worldwide and is readily available online despite Defense Distributed’s agreement to remove the plans from its website.
Release of the information is far from the public nuisance that politicians and the media have portrayed it to be. Efforts to manufacture a Liberator pistol would require several thousand dollars in equipment and a significant amount of time to make a pistol that may not be safe to fire once produced. Rather than going after the information, the eight states should be going after illegal action performed by possessing the information being distributed. This argument is further supported by the fact that the information has already been released; like the proverbial horse and barn door, it is far too late to control the flow of information on the internet once it has been released.
This article is not intended as, and should not be taken as legal advice. If you have legal questions regarding the content of this article, seek competent legal counsel. Mr. Wong is a Washington-licensed attorney. He regularly provides legal counsel to the firearm and defense industry via his law firm, The Firearms Law Group. Mr. Wong also maintains Hurricane Butterfly, an import/export company that assists U.S. firearm manufacturers and foreign buyers wade through the regulatory morass of U.S. import/export regulations.