Earlier this week I wrote about a group of 15 Republican congressmen co-signing an amicus brief in support of the creator of the 3D printed LIberator handgun, Cody Wilson, and his lawsuit against the State Department. After publishing the 3D printing files for his one-shot handgun online, Wilson was ordered to remove them by the State Department because according to them he was violating an act that regulated the distribution of weapons and information to international sources.
Because his case involves firearms, it’s only natural that a handful of conservative lawmakers, gun advocacy groups, and conservative think tanks would back Wilson. But perhaps the most important backer of his lawsuit is the Electronic Frontier Foundation, a relatively apolitical free speech advocacy group that focuses on digital rights and how they apply to civil liberties in the US.
Like the group of Congressmen, the EFF recently filed an amicus brief with the Fifth Circuit Court of Appeals on behalf of Cody Wilson and Defense Distributed. While many of Wilson’s advocates are focusing on what they believe to be a violation of his Second Amendment rights, an argument that I believe has little merit, the EFF is backing him based on the State Department violating his First Amendment rights–an argument that I believe has far more merit.
While the EFF isn’t a very popular organization with the government, they are quite popular among activists and they could generate a lot of support for Wilson that he may not have received otherwise. And while lawmakers won’t have as much luck swaying the courts as they hope they might, public support could embolden Congress to respond legislatively depending on the outcome.
From the EFF’s amicus brief:
“The First Amendment does not permit the government to presumptively criminalize online speech on a certain topic, and then decide on a case-by-case basis which speech to license, without any binding standards, fixed deadlines, or judicial review. Yet that is the regime advanced by the government in this case, criminalizing Americans who use the Internet to publish lawfully-obtained, nonclassified technical information relating to firearms and other technologies with military applications. The licensing regime at issue in this case is a prior restraint that lacks the procedural safeguards required by the First Amendment to prevent discriminatory censorship decisions.”
When the State Department cited International Traffic in Arms Regulations (ITAR) as the reason Wilson needed to remove the Liberator files from the Internet, they essentially deemed that Wilson was exporting weapons overseas; however, the Supreme Court has already ruled that free speech can only be restrained by national security concerns, and only when absolutely necessary in order to prevent proven, immediate threats. But even under the most basic of scrutiny, 3D printable files of a one shot, plastic handgun hardly seems to be much of a national security threat. It seems that the State Department clearly overstepped their bounds and needlessly broadened the reach of the ITAR to suit their agenda without demonstrating the need to do so.
The EFF continues:
“The regulation impermissibly sacrifices speech for the convenience of the government, broadly criminalizing speech and putting the onus on speakers to seek leave to publish. The Department of Justice warned the administrators of ITAR over thirty years ago that the First Amendment would not allow such a prepublication review regime. Yet, rather than developing appropriately tailored regulations, the government has revived the overbroad scheme of prior restraint it once disavowed. The government will be unable to establish that this scheme is consistent with the First Amendment.”
At its core the issue here between Wilson and the State Department is strikingly similar to one of the EFF’s earliest victories, the case of Bernstein v. US Department of State. The Bernstein case centered around the sharing of open source encryption software that was made freely available online. When Bernstein, a Berkeley college student, designed encryption software that he called Snuffle, intending both to release it and publish a paper about its development, the government attempted to prevent him from doing so by requiring that he submit his ideas to them for review.
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Originally Posted by Ron Paul
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