Academic journal article Harvard Law Review

First Amendment - Technology - Fifth Circuit Declines to Enjoin Regulation of Online Publication of 3D-Printing Files - Defense Distributed V. United States Department of State

Academic journal article Harvard Law Review

First Amendment - Technology - Fifth Circuit Declines to Enjoin Regulation of Online Publication of 3D-Printing Files - Defense Distributed V. United States Department of State

Article excerpt

FIRST AMENDMENT--TECHNOLOGY--FIFTH CIRCUIT DECLINES TO ENJOIN REGULATION OF ONLINE PUBLICATION OF 3D PRINTING FILES.--Defense Distributed v. United States Department of State, 838 F.3d 451 (5th Cir. 2016).

The First Amendment protects most speech from prior restraint by the government. But technology has begun to test the boundaries of traditional First Amendment doctrine. The development of three-dimensional (3D) printing throws this issue into sharp relief--with a 3D printer, one can "print" a physical object from computer code. (1) If sharing this code is speech, the government might be hampered in regulating the physical objects that are printed. This question is particularly important when the object at issue is an untraceable weapon. Recently, in Defense Distributed v. United States Department of State, (2) the Fifth Circuit refused to suspend a regulation restricting publication of computer-aided design (CAD) files that enable the public to print guns or gun parts using just a 3D printer. In denying an injunction, however, the court implicitly endorsed a sweeping interpretation of the First Amendment. (3) Because CAD files do not constitute speech under the First Amendment, their publication need not be measured against its standards.

Defense Distributed is a nonprofit organization committed to promoting Second Amendment rights by "facilitating global access to ... information ... related to the 3D printing of arms" and publishing this information online for free. (4) In furtherance of this mission, the organization published a number of gun-related CAD files on its website. One published file enables users to print an AR-15's lower receiver, which is the indispensable, regulated part of the weapon that bears a traceable serial number when conventionally manufactured. (5) Defense Distributed also published a file for the world's first entirely 3D-printable handgun, "The Liberator." (6) In just two days, the Liberator file was downloaded approximately 100,000 times. (7) But this success was short-lived. On May 8, 2013, Defense Distributed received a letter from the State Department alleging that, under the Arms Export

Control Act (8) (AECA), the CAD files posted by the organization could not be "exported" abroad--in the form of online publication--without government pre-approval. (9) Defense Distributed removed these files, but they remain freely accessible through third-party sites such as The Pirate Bay. (10) After lengthy waits for approval to post further files, Defense Distributed, together with the Second Amendment Foundation, filed suit in the United States District Court for the Western District of Texas. (11) The plaintiffs alleged that the State Department's interpretation of the AECA created an unconstitutional prior restraint on speech, and sought a preliminary injunction enjoining the enforcement of any prepublication approval requirements. (12)

The district court denied the motion. Judge Pitman began by emphasizing that preliminary injunctions are "extraordinary remedies]," (13) to be granted only if the court finds: (1) a substantial likelihood of success on the merits; (2) a substantial threat that failure to grant the injunction will cause irreparable injury; (3) that the threatened injury outweighs damage that the injunction may cause the opposing party; and (4) that the injunction will not harm the public interest. (14)

Judge Pitman found the plaintiffs failed to show that the harms of denying the injunction would outweigh those of granting it. He reasoned that while restrictions on First Amendment freedoms "unquestionably constitute [] irreparable injury," (15) the public interest and balancing prongs "essentially collapse []" in this case because the government's interest is in national security. (16) But the plaintiffs' argument failed to account for the authority of the President and

Congress over foreign policy. This authority, which is "largely immune from judicial inquiry or interference," gave the public interest the upper hand. …

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