Megan Kauffman, Associate Member, University of Cincinnati Law Review
In August 2018, a federal judge in the United States District Court for the Western District of Washington issued a preliminary injunction in the case of Washington v. United States Department of State, temporarily blocking the online dissemination of manuals on how to print a 3D gun.[2] Judge Lasnik determined that the need for national security and personal safety outweighed the potential First Amendment rights, at least until a full hearing can occur.[3] The judge ordered that the private defendants in the case, including Defense Distributed, who wished to post computer aided design (CAD) files on the internet, can email, mail, securely transmit, or disseminate the information through other means while the preliminary injunction stands.[4] The injunction only blocks the defendants from uploading the files to the internet for broad public viewing.[5]
Procedural Posture
During the Obama administration, the State Department took the position that the Arms Export Control Act allowed for restrictions on the internet publication of documents that explain how to print a 3D gun or other firearm.[6] Defense Distributed originally filed for a preliminary injunction against the State Department in the Western District of Texas after it was told by the Directorate of Defense Trade Controls (DDTC), a part of the State Department, to remove its CAD files from the internet that explained how to make a gun using a 3D printer.[7] Defense Distributed claimed publication rights under the First, Second and Fifth Amendment.[8] The DDTC argued that the publication of the files would result in the production of fully operable, plastic weapons that are virtually undetectable under normal security measures and would be untraceable since the weapons could be printed without serial numbers and without registration.[9] The DDTC further argued that 3D printed weapons could result in serious crimes including assassinations and terrorism and could have harmful, long term effects on national security and foreign policy.[10]
Both the Western District of Texas and the Fifth Circuit held in the initial litigation that the need for security and safety outweighed the protection of the rights given under the argued Amendments and the preliminary injunction was not granted.[11] In April 2018, under the Trump administration, the federal government moved to dismiss Defense Distributed’s case, stating again that the importance of security and foreign policy greatly outweighed First and Second Amendment rights.[12]
But less than a month later, the State Department and Defense Distributed came to a settlement where the State Department reversed its decision, without a specified reason, and authorized Defense Distributed to upload its CAD files to the internet for creation of 3D printed firearms and other components under a temporary modification to the United States Munition List.[13] The State Department announced its decision on May 24, 2018 and signed the settlement agreement on June 29, 2018.[14] It published its modification and sent a letter to Defense Distributed stating that it could proceed to disseminate the contested files online.[15] Three days after the publication of the modification, eight states and the District of Columbia filed a lawsuit against the US Department of State and Defense Distributed, arguing that the authorization for internet publication was in violation of the Administrative Procedure Act and the Tenth Amendment of the Constitution.[16] As stated above, the judge issued a preliminary injunction blocking the publication of the CAD files onto the internet until the case can be fully heard.[17]
Uncertainty in the Case Outcome
The two argued issues in Washington are two hot topic buttons in today’s democracy. There is a readily discernible public safety interest in restricting the dissemination of 3D printing instructions for weapons. However, the Constitutional bar for the government restricting free speech is high.[18] Further, there are, arguably, more dangerous materials readily accessible to the public.[19] Therefore, the case for constitutionally restricting the dissemination of 3D printing instructions for guns is not clear. No matter which way the court rules in Washington, the losing party will most likely appeal to a higher court, possibly the Supreme Court. If heard before the Supreme Court, a majority could possibly rule in favor of the State Department and Defense Distributed. The Supreme Court has demonstrated in the past its willingness to allow potentially dangerous types of speech under the First Amendment.[20] Politics could also color the decision of a higher court.[21] With these factors in mind, the final outcome of Washington will indicate the willingness of a higher court to limit constitutional rights in the interest of public safety.
[1] Credit to Matt Higgins, Associate Member, for title.
[2] Washington v. United States Dep’t. of State, 318 F. Supp. 3d 1247, 1264 (W.D. Wash. 2018).
[3] Id.
[4] Id.
[5] Id.
[6] Washington at 1251.
[7] Id at 1252.
[8] Id.
[9] Id.
[10] Id at 1252-1253.
[11] Id at 1253.
[12] Id.
[13] Id.
[14] Id.
[15] Id.
[16] Id at 1254.
[17] Id at 1264.
[18] See Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).
[19] Joe Flaherty, 10 Guns, Bombs, and Weapons You Can Build at the Airport, WIRED (Dec. 2, 2013) available at https://www.wired.com/2013/12/terminal-cornucopia/.
[20] See e.g., R. A. V. v. St. Paul, 505 U.S. 377 (1992).
[21] See Martin Garbus, The New York Times, Politics and the Supreme Court, https://www.nytimes.com/2018/09/12/opinion/letters/supreme-court-politics.html (last visited Oct 4, 2018).
