Posted August 27, 2018, 4:35 pm CDT
Herr Loeffler/Shutterstock.com.
Tuesday, August 28, 2018
Judge extends online ban on 3D gun blueprints, says free speech right is abridged but not abrogated
First Amendment
A federal judge in Seattle has found that a former law student’s presumed First Amendment interests in publishing online blueprints for plastic 3D printed guns are “dwarfed by the irreparable harms” likely to be suffered by the states if federal restrictions on the blueprints are lifted.
The preliminary injunction issued Monday by U.S. District Judge Robert Lasnik blocks the federal government from allowing publication of the blueprints until resolution of the multistate lawsuit seeking to keep the blueprints offline. Lasnik had issued a temporary restraining order in the case July 31. The Associated Press, the Hill, the New York Times and Ars Technica have stories. The New York Attorney General has a press release.
Lasnik said he “declines to wade through” the First Amendment issues on the limited record so far, but any burdens on speech are outweighed by likely harm to the states. Lasnik added that the First Amendment right “is currently abridged, but it has not been abrogated.”
Though the blueprints can’t be uploaded to the internet, “they can be emailed, mailed, securely transmitted, or otherwise published within the United States,” he wrote.
The First Amendment issues that Lasnik declined to address include: Is computer code speech, and if so, is it protected by the First Amendment? Are export controls a prior restraint giving rise to a presumption that they are unconstitutional? Did the government try to regulate distribution of the files because of the message they convey? What level of scrutiny applies?
Defense Distributed and its leader, former law student Cody Wilson, had planned to publish the blueprints after resolution of a lawsuit claiming the State Department violated the First Amendment by warning in 2013 that publication of the blueprints violated export controls.
The U.S. State Department agreed to settle the suit by removing gun blueprints for weapons from the type of technical gun data that is banned from export under the Arms Export Control Act. The plaintiffs alleged the federal government’s switch in stance violated the Administrative Procedure Act and conflicted with state and federal laws limiting access to guns.
Lasnik cited several likely harms to the states. Plastic guns are “virtually undetectable” in metal detectors; the plastic guns could be printed by people banned from owning guns; the guns would have no identifying information; and the guns can thwart forensic techniques that link a bullet to a particular weapon.
Defense Distributed said nine of its blueprints were already published because of the settlement, though the company took them down after Lasnik entered the TRO.
The suit was initially filed by eight states and Washington, D.C. Eleven more states joined the suit in an amended complaint filed Aug. 2. Lasnik said “it is not clear how available the nine files are: the possibility that a cybernaut with a BitTorrent protocol will be able to find a file in the dark or remote recesses of the internet does not make the posting to Defense Distributed’s site harmless.”
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