On Monday, the Fifth Circuit heard arguments in a case I am litigating, Defense Distributed v. Department of State (You can find all the pleadings here). To grossly oversimplify a fairly complicated case, the State Department determined that posting CAD files on the internet, which can be used to 3D-print a gun, constitutes an illegal export of arms. We challenged this action based on the 1st Amendment, the 2nd Amendment, under the intricacies of export control laws, and based on various principles of administrative law (ultra vires, etc.). (My colleague Matt Goldstein has a detailed post about the export-control issues).
One exchange during oral arguments brought me back to the Court’s first argument in Citizens United. The court asked the DOJ attorney, whether the government could regulate the same information if it was published in a book form, and placed into a public library. If Malcolm Stewart’s answer in Citizens United had taught us anything, the answer to any question about banning books must be: no, we will not ban books. On Monday, the DOJ attorney hedged.
Here is our rough, unofficial transcript of the exchange, which begins at 25:39.
C0urt: Is there a difference between Defense Distributed, putting these plans in a scientific book that goes in every library in the country? Is there any difference [between] that and putting it on the Internet?
DOJ: Umm, well, I mean, I think when you’re talking about a book, of course, that would be something that a human would have to read and then, would have to, umm, so–
Court: I assume they could either put it in there [a book] or put a reference to it on the Internet?
DOJ: Yeah, I mean, I, I think if your honor’s question relates to the mechanism by which it’s distributed, I mean, that could be relevant in, in the particular case, although, uhh.
Court: Does the department purport to regulate that, putting it in library books or books going in the libraries?
DOJ: Umm, I, I mean, the State Department hasn’t faced that issue your honor so I don’t wanna get out ahead of them. I think if, if the question, if the question relates to, if you wanted, if it was a genuine scientific book, then you start talking about some of the issues and there are exceptions in the regulation and I can’t pre-judge how they would apply here for things about fundamental research, about academic settings and those weren’t invoked here because there’s no claim that those are at play here but, you know, if you had a particular case where somebody wanted to do a particular thing, then the State Department would have to apply those provisions. So a, a ruling here certainly wouldn’t address that, you know. Ruling for us here, in affirming the district court here, either on the merits or on the preliminary injunction factors wouldn’t say anything about what would happen in that case. [27:13]
Later during the argument, the court asked again whether the government would have the power to regulate this information if it was published in Popular Mechanics, and placed in a library. (The audio starts around 30:30).
Court: They are not specific. They are extremely vague. Foreign means quote exposed to any foreigner. Well, you exposed anything to a foreigner if you put it in Popular Mechanics, produced in English or if you, again, put it in the local library, correct?
DOJ: Uhh, I, it really depends on the circumstances.
Court: It does not depend on, a public library is a public library, isn’t it?
A flashback to oral arguments in Citizens United is worthwhile.
Justice Alito: What’s your answer to Mr. Olson’s point that there isn’t any constitutional difference between the distribution of this movie on video demand and providing access on the Internet, providing DVDs, either through a commercial service or maybe in a public library, providing the same thing in a book? Would the Constitution permit the restriction of all of those as well?
Malcolm L. Stewart: –I think the — the Constitution would have permitted Congress to apply the electioneering communication restrictions to the extent that they were otherwise constitutional under Wisconsin Right to Life. Those could have been applied to additional media as well. And it’s worth remembering that the pre-existing Federal Election Campaign Act restrictions on corporate electioneering which have been limited by this Court’s decisions to express advocacy–
Justice Alito: That’s pretty incredible. You think that if — if a book was published, a campaign biography that was the functional equivalent of express advocacy, that could be banned?
Malcolm L. Stewart: I’m not saying it could be banned. I’m saying that Congress could prohibit the use of corporate treasury funds and could require a corporation to publish it using its PAC.
Justice Kennedy: Just to make it clear, it’s the government’s position that under the statute, if this Kindle device where you can read a book which is campaign advocacy, within the 60/30-day period, if it comes from a satellite, it’s under — it can be prohibited under the Constitution and perhaps under this statute?
Malcolm L. Stewart: –It — it can’t be prohibited, but a corporation could be barred from using its general treasury funds to publish the book and could be required to use — to raise funds to publish the book using its PAC.
When the case was reargued, then-Solicitor General Elena Kagan wisely reconsidered this position:
Justice Ginsburg: May I ask you one question that was highlighted in the prior argument, and that was if Congress could say no TV and radio ads, could it also say no newspaper ads, no campaign biographies? Last time the answer was, yes, Congress could, but it didn’t. Is that — is that still the government’s answer?
Solicitor General Kagan: The government’s answer has changed, Justice Ginsburg. [Laughter] It is still true that BCRA 203, which is the only statute involved in this case, does not apply to books or anything other than broadcast; 441b does, on its face, apply to other media. And we took what the Court — what the Court’s — the Court’s own reaction to some of those other hypotheticals very seriously. We went back, we considered the matter carefully, and the government’s view is that although 441b does cover full-length books, that there would be quite good as-applied challenge to any attempt to apply 441b in that context. And I should say that the FEC has never applied 441b in that context. So for 60 years a book has never been at issue.
If the government’s argument is that it has the power to regulate a book in a library, the government’s position is wrong. Yet, in our case, the Justice Department hedged on this critical question. I don’t think this was due to poor advocacy–to the contrary, this answer was compelled by the government’s unprecedented position that the State Department has an almost limitless censorship power over public speech.