Can a Court Arbitrarily Conclude That ‘Security’ Overrules the First Amendment? – Reason (blog)

Posted: August 15, 2017 at 11:53 am

A 3D printer company founded by provocateur Cody Wilson, along with the Second Amendment Foundation, has filed for certiorari to the U.S. Supreme Court in a case asking that the company be allowed to post on its website instructions for using a 3D printer to manufacture a plastic gun.

Defense Distributed and the Foundation sued the State Department and other government persons and agencies back in May 2015 after the government threatened the company in May of 2013 for hosting the 3D gun manufacturing files.

Defense Distributed

The government maintains that such files are essentially armaments in and of themselves and subject to existing laws against the export of such munitions, with posting them in a place where foreigners could access them constituting such an illegal export.

The plaintiffs have sustained a series of losses in lower courts attempting to get a preliminary injunction against the government. Their plaintiffs contends the government has violated the company owners' First, Second, and Fifth Amendment rights with its actions.

Most specifically in this cert petition they have asked the Supreme Court to answer these questions:

1. Whether a court weighing a preliminary injunction must consider a First Amendment plaintiff's likelihood of success on the merits. 2. Whether it is always in the public interest to follow constitutional requirements. 3. Whether the Arms Export Control Act of 1976....and its implementing International Traffic in Arms Regulations ("ITAR")...may be applied as a prior restraint on public speech.

The petition insists that in denying their request for an injunction, the Fifth Circuit Court of Appeals has taken a dangerous stance in balancing the First Amendment against government's insistence that it has very good reason to violate it.

It is also worth noting the files in question, although no longer hosted by Defense Distributed, are universally available on the internet from many other sources.

Defense Distributed is represented in this case by Alan Gura, who won two previous Second Amendment victories at the Supreme Court in 2008's Heller case and 2010's McDonald. Gura and his co-counsels argue in the petition the Fifth Circuit should not have been allowed to have:

simply declared that the government's asserted interests outweighed the interest in securing constitutional rights....considering the merits of preliminary injunction motions is not optional. Of all contexts, the merits cannot be optional in First Amendment cases. It should ordinarily go without sayingand so it must now be saidthat federal courts cannot dismiss the Constitution's primacy in our legal system...

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.

Gura argues the government's rules defining what falls under ITAR are completely ambiguous and confusing. The process for learning whether or not those rules apply to you is a similar mess of ambiguity and overreach. And the government's ability to stonewall drags out cases like that of Defense Distributed for years, Gura writes.

The petition also details the history of interpretation of ITAR over the past decade in the (proper) direction of not using it as a prior restraint on expression or speech on American citizens when it involved non-classified information.

The Fifth Circuit, in its decision on the appeal of an initial district court loss for Defense Distributed, was pretty blatant in saying the First Amendment doesn't count here because the government says so:

Ordinarily, of course, the protection of constitutional rights would be the highest public interest at issue in a case. That is not necessarily true here, however, because the State Department has asserted a very strong public interest in national defense and national security.

Gura finds that assertion unsatisfying, leaning on a Fifth Circuit dissent from the panel's majority opinion. Dissenter Judge Edith Jones:

noted that "[i]nterference with First Amendment rights for any period of time, even for short periods, constitutes irreparable injury,"...and that "Defense Distributed has been denied publication rights for over three years,"...She then found it "a mystery" why the majority was "unwilling to correct" the district court's "obvious error" in applying only intermediate scrutiny to the content-based prior restraint at issue...

[Judge Jones believes the State Department's censorship of Defense Distributed] "appears to violate the governing statute, represents an irrational interpretation of the regulations, and violates the First Amendment as a content-based regulation and a prior restraint."

Jones also pointed out how weirdly ineffectual is the government's desired power to violate the First Amendment. The government admits stating or publishing that same information at a conference in the U.S., or in a domestic publication or library, would be protected speech if they somehow could insure no foreigners accessed it. Foreigners could, of course, access such information on the Internet, an act considered a blow against national security so severe it trumps the First Amendment. That is, if "foreigners can't hear this speech" is to be held as true and important, the power to restrict speech applies far beyond the Internet.

The Fifth Circuit's decision to ignore the First Amendment is dangerous far beyond the simple question of publishing files for printing plastic armaments on the internet, Gura argues. That decision:

has unsettled the established norms for adjudicating preliminary injunction requests. Gone is this [Supreme] Court's careful balancing test, with its reliance on the merits. In its place, a wholly arbitrary system: The court will consider the merits, when it wishes to do so. Whether the merits might reveal a constitutional violation is less important, because the court will enforce the Constitution only when it seems to be a good idea.

What are courts, attorneys, and the public to make of this innovation?

Critics of this or that opinion often allege that a court has followed an extra-constitutional agenda. For a court to declare that it has done just thatin ignoring a content-based prior restraint no lessraises basic questions about the judiciary's function. The public is left with no way of knowing when a judge would declare some interest more important than the Constitution, or even bother hearing the merits of plainly significant pleas to enjoin unconstitutional conduct.

Absent a merits inquiry, a court balancing the unknown equities is reduced...to declaring whether an abstract interest in constitutional rights is more or less important than an equally abstract government interest. And if the court then decides, as did the majority below, that security > freedom, that ends the matter. The logic is inescapable; where applied, it bars any injunctive relief.

Expressed that way, the danger of letting the Fifth Circuit decision stand should be clear even to Americans who don't understand why anyone, domestic or foreign, needs a computer file that helps them print a plastic gun at home.

The Supreme Court should take up the case, and let lower courts know they can't, absent a fair consideration of the merits, blithely decide that security beats the First Amendment in court.

Reason TV interviewed Cody Wilson of Defense Distributed last year:

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Can a Court Arbitrarily Conclude That 'Security' Overrules the First Amendment? - Reason (blog)

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