We have filed a petition for a writ of certiorari in Defense Distributed v. Department of State.
Here are the questions presented:
Here is the introduction:
Is the Constitution’s implementation in the public interest? When deciding whether to enjoin a content-based prior restraint on speech, must federal courts assess the merits of the First Amendment claim?
Until the decision below, these were not controversial questions. The Constitution, amendments and all, is the Nation’s highest law. And without examining a claim’s merits, judges are in no position to balance the equities, assess irreparable harm, or determine what outcome serves the public interest.
Yet without meaningfully responding to pointed dissents at the panel and en banc rehearing stages, the court below refused to examine the merits of Petition- ers’ motion to preliminarily enjoin a content-based prior restraint on speech. It simply declared that the government’s asserted interests outweighed the inter- est in securing constitutional rights, the enforcement of which may not serve the public interest.
This decision raises the specter of summary reversal. As this Court has instructed, considering the mer- its of preliminary injunction motions is not optional. Of all contexts, the merits cannot be optional in First Amendment cases. It should ordinarily go without saying—and so it must now be said—that federal courts cannot dismiss the Constitution’s primacy in our legal system. Nor can judges decide that some speakers will have their claims addressed on the mer- its, while rubber-stamping the denial of disfavored claims based only on the government’s mere assertion of a regulatory interest. The government can be relied upon to assert the necessity of every prior restraint. The public must be able to rely on the courts to test these assertions for constitutional compliance.
Apart from conflicting with this Court’s instructions, the decision below conflicts with the precedents of ten circuits that affirm the protection of First Amendment rights via preliminary injunction, and five circuits that hold the Constitution to be in the public interest per se. The context of this startling departure from judicial norms is itself noteworthy: the Executive Branch’s abrupt reversal of nearly forty years of policy against imposing arms-control regulations as a prior restraint on Americans’ public speech.
The danger posed to First Amendment rights by the decision below is plain enough. But there is no reason to suppose the mischief would remain so confined. The decision below warrants this Court’s review.
You can find all of the lower-court pleadings here.