Defense Distributed v. Department of State is on appeal to the 5th Circuit. This appeal challenges the State Department’s application of arms control regulations to files related to 3D-Printed Guns. I am counsel on this case, along with Alan Gura, Matt Goldstein, and Bill Mateja.

We filed our Appellant Brief last week. Here is the summary of our argument:

The pen may be mightier than the sword, but it is not a sword. Nor are blueprints, computer files, and other forms of expression about guns the “functional equivalent” of guns. Nor should public speech including unclassified “technical data” be the stuff of national security controls merely because it might theoretically relate to military articles.

And when Americans speak in public forums about unclassified information that they have created, they are not “exporting” it overseas just because a foreigner might overhear their conversation.

This is not merely Plaintiffs’ position. For years, it was the position of the Department of Justice, which repeatedly warned that the International Traffic in Arms Regulations (“ITAR”) could not be used as a prior restraint against speech in public forums. Indeed, the State Department has adopted Plaintiffs’ position in litigating ITAR’s limits before federal courts.

But Defendant State Department officials now veer far from the recognized path. Ignoring DOJ advice, these officials singled out one speaker among many on the novel theory that its speech falls within ITAR’s boundless definition of “technical data” and thus cannot be “exported”—that is, expressed in any manner potentially accessible to foreigners—without prior approval. And the Government’s speech- licensing regime is expensive, slow, indeterminate, and bereft of judicial review.

We have thus reached the point where Americans cannot speak about “technical data,” whatever that is, without ensuring that the theater, auditorium, trade show floor, television audience or street corner is free of “foreign persons.” And because the Internet is available worldwide, Americans risk severe penalties when exchanging a broad array of information online, including the most basic information pertaining to Second Amendment-protected arms.

Congress never sanctioned this state of affairs, which is intolerable under established First, Second, and Fifth Amendment precedent. The District Court’s denial of a preliminary injunction against this prior restraint should be reversed.

In addition, we received amicus briefs from the following groups:

• Reporters Committee for Freedom of the Press and the Thomas Jefferson Center – This brief shows that “The absence of judicial review exacerbates the ITAR‘s overbroad sweep by obscuring the distinction between “permissible” journalism and prohibited speech .”
• Cato Institute – Cato’s brief explains why “protected speech does not lose First Amendment protection simply because it could be used to unlawful ends.”
• Rep. Thomas Massie and 14 Members of the U.S. House of Representatives – This brief shows that “Congress did not delegate the power to ban the publication of lawful speech when it passed the Arms Export Control Act to regulate exports and imports of arms.” Additionally, even if ti did, “then it would exceed Congress’s limited and enumerated powers.”
• Electronic Frontier Foundation – This brief analyzes why “ITAR’s prepublication review of technical data is an unlawful prior restraint on speech.”
• Madison Society Foundation – This brief discusses that “The Framers understood gunsmithing to be a personal activity by which each man could make his own gun.”
• Texas Public Policy Foundation – The brief concludes that “issuing the temporary injunction will not harm the public interest.”

Fox News wrote an article about the congressional brief, “Lawmakers lay down courtroom cover for 3-D-printed gun inventor.”

Some 15 lawmakers are providing legal cover for the creator of a 3-D-printed gun, saying the State Department went too far two years ago when it forced him to take down online blueprints for the do-it-yourself weapon.

The members of Congress, led by Rep. Thomas Massie, R-Kent., signed onto an amicus brief in the Fifth Circuit Court of Appeals, where Texas inventor Cody Wilson is fighting a lower court ruling in favor of the government agency. The State Department in 2013, citing a law allowing it to regulate international arms trafficking, blocked Wilson and his nonprofit group Defense Distributed from posting technical data for 3-D printing of legal handguns.

Ilya Shapiro wrote a post about Cato’s brief, titled “Government Can’t Censor Digital Expression Just Because Someone Somewhere Might Use It for Unlawful Purposes.”

When Defense Distributed, ably represented by Alan Gura and Josh Blackman, challenged this restriction of its right to disseminate information to Americans—which the State Department’s own guidance says is protected by the First Amendment—the federal district court ruled for the government. Cato has now filed an amicus brief in the U.S. Court of Appeals for the Fifth Circuit, urging it to defend the First Amendment right of Americans to share open-source technical information.

Defense Distributed is not in the business of distributing arms. What it distributes, as properly recognized by the district court, is computer code in the form of CAD and other files. Code and digital files are speech for purposes of the First Amendment, as several federal appellate courts have recognized. Most importantly, simply because speech may be used for unlawful purposes by third parties doesn’t mean it loses constitutional protection.

You can see all of the filings here.