Yesterday, a federal judge in Seattle issued a temporary restraining order preventing Defense Distributed, an organization championing open source code to make guns available to the public, from publishing its blueprints for printing plastic, working 3D guns.  Defense Distributed had posted the code several days earlier, prior to its stated August 1 release, but the code was removed immediately following the restraining order’s issue.  The temporary restraining order was issued after eight states and the District of Columbia sued the State Department for reversing course and settling with Defense Distributed after prohibiting the distribution of the Computer Aided Design files as a violation of gun export laws.

In an initial lawsuit, the federal government wished to block Defense Distributed from posting its open source code.  The State Department had opposed a temporary restraining order sought by Defense Distributed against enforcement of gun export laws.  A federal district court and the Fifth Circuit agreed and refused to issue Defense Distributed the restraining order, thereby temporarily blocking the posting of code by Defense Distributed until a resolution at trial.  However, in what several states and D.C. deem a violation of the Administrative Procedure Act and the Tenth Amendment, the federal government recently settled and permitted the posting of Computer Aided Design files.

Leaving aside the questions of whether the government’s reversal of position unconstitutionally infringes upon state police powers or is arbitrary and capricious or ultra vires, Defense Distributed’s underlying First Amendment claim exposes some uncomfortable and conflicting truths about the First Amendment.  Speech can lead to harm but is not itself physically harmful.  This very attenuation between speech and harm is what gives speech its special protection.  Arguments that speech leads to harm (such as in cases of violent song lyrics or incendiary political views) are generally rejected by courts hearing First Amendment challenges.  If speech can be regulated because it ultimately causes harm, very little speech would be protected.  However, if the government has a compelling interest in regulating speech and a law is narrowly tailored to serve that interest, courts will (rarely) allow a government regulation of speech in order to prevent harm.  This mixture of necessarily principled protection of even harmful speech with harms balancing in extreme cases makes this particular scenario, involving open source gun code, a hard, unpredictable, and important test case.

Publicly accessible open source gun code is a disturbing prospect, because anyone can print out a gun that is not registered.   However, the First Amendment does present a serious impediment to blocking the publication of computer code, even code that allows others to evade the law.  Code has been considered speech, when it is used to communicate information between people, even if those people use the code to break the law.  Computer code that could bypass technological barriers to preventing copyright infringement has been considered speech, expressed in the language of computer code, when posted to instruct people how to evade copyright infringement detection software.  Posting computer code to tell human beings how to get one’s computer to perform a certain task is thus an instance of speech.  However, when the code is being run on a computer, or a printer, code does not function as speech.

This means that, under current Circuit Court of Appeals jurisprudence, the sharing of the computer code with others to communicate ideas or functionality is protected speech, although the actual printing of the gun can be criminalized.  The enforcement problem for the government is that it is near impossible to go after individuals who print the gun code because these individuals are diffuse and undetectable.  The state governments would thus rather be able to ban dissemination of the code by organizations like Defense Distributed.

There are rare cases where the Supreme Court has allowed the prohibition of speech in order to prevent underlying illegal activity.  Child pornography is not protected speech, because the speech is so intimately connected to illegal child molestation.  However, usually the government can prevent only the underlying illegal activity, not the sharing of speech.  Even images of animal torture are protected speech, and the law can generally punish only the torturers, not those who take or disseminate images of the illegal activity.  So, the question is whether, because of the danger or of the seriousness of gun export laws, communicating computer code is closer to computer code that evades copyright protections or whether it is closer to child pornography.

Even if the code is protected speech (which I think it is) a court could still hold that speech restrictions are permitted if they serve a compelling government interest.  Here, public safety might be a compelling enough interest to restrict speech, but this type of strict constitutional scrutiny is not often satisfied when speech is involved — in order to maintain our robust speech protections.  Virtual images of child pornography (people over 18 or realistic drawings of children) cannot be banned even if that makes it harder to catch people posting actual child pornography.  The enforcement difficulty posed is that the government can’t necessarily tell the difference between protected virtual child pornography and real child pornography.  However, the government generally cannot punish speech to make it easier to detect another’s illegal activity or enforce punishment.

The most recent instance of a restriction on speech that survived strict constitutional scrutiny at the Supreme Court was speech that violated federal law by providing material support to organizations deemed foreign terrorist groups.  Humanitarian groups wished to give legal aid and monetary contributions to these groups to support their non-violent activities.  The Supreme Court held that the government’s interest in preventing terrorist activity outweighed the free speech interests in providing money and advice to support the non-violent activities of these groups because money and aid are fungible.  Because the number of terrorist groups is limited, and the definitions of material support were also limited (they excluded medicine and religious literature, for example), the Court permitted the speech restrictions.

Publicly accessible gun code may pose the same level of safety risk as terrorist organizations, although the government has a wider sphere of discretion and judgment to assess harms in the context of foreign policy.

Whether 3D gun blueprints are speech, and whether they can be regulated even if they are speech, are difficult legal questions.  We need to think beyond our concerns about dissemination of unregistered guns to the larger rule of law principles and the First Amendment doctrine that will result from resolution of this case.  However, the safety risks may be large, and are, in some ways, built into the jurisprudence as well.   Perhaps technology always wins anyway, because Defense Distributed had already published its code before the temporary restraining order issued.  Information, even terribly harmful information, does want to be free.

[Edit:  a more recent speech restriction to survive strict scrutiny involved prohibitions on judges personally soliciting funds for their campaigns.]