First Amendment Right to Publish New Technology Shut Down: for better or for worse?

February 3, 2020

Think about that friend of yours. You know the one, outgoing, tall, in very good shape. Always wearing cut-off shirts, even in January when it is 30 degrees outside. You say to them, “dude, why are you wearing short sleeves, when it is freezing outside?”. They respond, “because I have the right to bear arms”. Ba da da cha. As cliché as this joke is, everyone knows it. In fact, of all the amendments in The Constitution, most people are probably familiar with the first two. Freedom of speech, and the right to bear arms.  These two rights came head-to-head in a recent court case out of the Fifth Circuit. 

In Williamson v. United States Department of State, the plaintiffs were a non-profit Texas defense tech company called, Defense Distributed. The company advocates for the Second Amendment right to keep and bear arms. Defense Distributed created plans for putting together a firearm using a 3D printer and wanted to publish those plans on the internet, so that the public would have access.  The State Department ordered Defense Distributed not to publish these plans, stating that because of federal regulations, Defense Distributed would have to first get government approval.  

Defense Distributed sued the State Department for blocking them from publishing their plans. The district court eventually ordered both parties to discuss settlement, and the parties reached a settlement agreement, which allowed Defense Distributed to publish the plans. The parties then filed to dismiss the suit, since they had reached an agreement. On the same day the case was dismissed, the state of Washington, which was joined by 18 other states and D.C. filed a lawsuit in Washington claiming that the settlement agreement (between Defense Distributed and the Department of State) was a violation of the APA and the Tenth Amendment. The State of Washington was trying to prevent certain parts of the settlement agreement from being enforced, like the part where Defense Distributed could publish their plans. The district court in Washington issued a temporary restraining order against the State Department and a preliminary injunction, which prevented the plans from being published. 

            Because of this, Defense Distributed tried to reopen their case against the State Department, which they had voluntarily dismissed. They tried to do this, by relying on rule 59(e) from the Rules of Civil Procedure. The district court denied Defense Distributed’s Rule 59(e) motion, and Defense Distributed Appealed to the Fifth Circuit. The Fifth Circuit found that Rule 59(e) gives a party the power to alter or amend a judgment, but it does not allow a party to bring back a dismissed lawsuit. Had the case been tried, and the district court made a judgment, rule 59(e) would have applied, but because Defense Distributed dismissed the case themselves, they were unable to re-bring the lawsuit. 

            Defense Distributed had no way of knowing that this nationwide injunction, prohibiting them from publishing their plans, would take effect after settling their case with the State Department. Had they known that, they most likely would not have voluntarily dismissed their suit in which they were demanding their right to freedom of speech be recognized. 

            So, what now? As a result of the Fifth Circuit’s opinion, that Defense Distributed cannot re-bring their suit, Defense Distributed is unable to publish there plans on how to assemble a gun, from a 3D printer. Is this really a bad thing? 19 states sought to prevent this publication by bringing a suit in Washington. Is this censorship, or is there a real fear for public safety if this technology gets into the wrong hands? According to Washington State Attorney General, Bob Ferguson, “These ghost guns are untraceable, virtually undetectable and, without today’s victory, available to any felon, domestic abuser or terrorist”. Technology has made it easy for weapons to fall into the wrong hands. Without having a license to sell, people could be making weapons from their homes and selling them to bad actors. 

            Although many may be cheering on the Fifth Circuit for preventing Defense Distributed from publishing their plans, these plans are still available online. The plans for Defense Distributed’s 3D-printed gun were posted on their website back in 2013, before the State Department demanded they be taken down. Before the company took the plans down, they had already been downloaded more than 100,000 times. They were again published online in 2018, after Defense Distributed came to a settlement agreement with the State Department but were shortly after blocked by the suit brought in Washington which granted an injunction. Even though the January 21stcase prevents Defense Distributed from re-bringing their suit, and there is an injunction preventing the company from posting their plans online, the plans are still widely available over the internet. A Google search of 3D gun assembly quickly brings up many images and how-to videos, of Defense Distributed’s plans. While public safety may have won in the court room, the Internet continues to circulate this new technology; for better or worse. 

Shayshari Potter