In a recent editorial demanding censorship of legal, unclassified information about firearms, The Washington Post mentioned freedom of speech in passing but immediately dismissed its relevance.
That's par for the course among gun controllers terrified by the thought of Americans using 3D printers or computerized milling machines to make firearms with the help of software provided by Defense Distributed. People who are convinced that the Austin, Texas, company's computer code will "put carnage a click away" (as the Post put it) tend to overlook the fact that they have moved from regulating guns to regulating speech.
Last week, when a federal judge in Seattle told Defense Distributed to stop uploading its files, his seven-page temporary restraining order did not address the First Amendment implications at all. But Defense Distributed founder Cody Wilson, whom The New York Times tellingly describes as a "professed gun-rights and free-speech advocate," has emphasized the First Amendment angle from the beginning of his legal battle with the State Department over its attempt to suppress gun design files as unapproved munition exports.
Wilson's project, which seems designed to make gun controllers' heads explode, is deliberately provocative. But his constitutional argument is based on four well-accepted principles of First Amendment law.
First, computer code is speech. As Wilson noted in his lawsuit against the State Department, several federal appeals courts have reached that conclusion. The expressive aspect of software is especially prominent in this case, where the code has an explicitly political purpose.
Second, prior restraint of speech is presumptively unconstitutional. The Supreme Court confirmed that rule in the landmark 1971 Pentagon Papers case, where it rejected the Nixon administration's attempt to stop newspapers from publishing articles based on a classified history of the Vietnam War.
Third, content-based speech restrictions are subject to strict scrutiny. That means the government has to show its policy is "narrowly tailored" to serve a "compelling" state interest.
Fourth, speech cannot be banned merely because it might facilitate crime. While someone who is legally disqualified from owning guns could use a Defense Distributed file to produce one, for instance, there is nothing inherently criminal about making firearms at home.
The State Department, which viewed online publication of gun design software as tantamount to export, conceded that the very same information would be constitutionally protected in the form of a book or a lecture. But it maintained that posting the information on the internet was a crime punishable by up to 20 years in prison.
Although the Post editorial said Wilson "lost at every stage of litigation," none of the decisions was based on the merits of his First Amendment claims. When the U.S. Court of Appeals for the 5th Circuit upheld a federal judge's refusal to issue the preliminary injunction that Wilson sought, the two judges in the majority viewed the lower court's discussion of the free speech issue as "dicta," meaning it did not figure in the result.
The 5th Circuit declined to address the First Amendment questions at that stage, to the dismay of dissenting Judge Edith Jones. She thought it plain that "the State Department's application of its 'export' control regulations to this domestic Internet posting...violates the First Amendment as a content-based regulation and a prior restraint."
Last month the State Department settled the case, abandoning its bid to stop Defense Distributed from posting its files. That cause has now been taken up by various state governments, which sought the restraining order that U.S. District Judge Robert Lasnik issued last week.
Although Lasnik's order hinges on arcane questions of administrative law, the case is still "about free speech," as the Los Angeles Times editorial board, notwithstanding its support for stricter gun laws, acknowledges. "We don't like this use of 3-D printing technology," the Times says. "But we also jealously guard the 1st Amendment."
People who care about freedom of speech should be able to recognize that Cody Wilson is trying to exercise it, regardless of how they feel about guns.