Forcing the Federal Government Violate the First Amendment

Young Voices Contributors

Editor’s Note: This piece was written by Matthew Larosiere.

The federal government knows it can’t prevent you from posting gun designs online. It’s known this since at least 2018, when the Department of State offered to settle a case with Defense Distributed (DefDist), which it had previously ordered not to share gun files on the internet. This back-and-forth has made headlines periodically for years. The feds know the First Amendment protects all manner of designs, including 3D-printable files. For once, the federal government wants to stop an abuse of our rights. So why haven’t they? The answer lies with a group of state politicians, who at the end of January launched a push to force the feds to keep a policy that never really existed, and that nobody wants. This is ludicrous and must stop.

For some quick background, this whole controversy dates back to 2013, when DefDist was hosting a range of files online, including 3D models of its famous “Liberator” pistol, one of the first nearly entirely 3D-printed firearms. The Obama Administration had the Department of State order the files taken down. DefDist challenged this on various Constitutional grounds, most importantly the First Amendment. The Department of State’s tactic was to stretch its interpretation of a Cold-War era arms trafficking law, the International Traffic in Arms Regulations (“ITAR”), and assert that posting simple designs online was the equivalent of “exporting” significant military equipment to foreign countries.

The policy was basically a ban on posting any weapons-related designs online. Given the broad protections recognized by the First Amendment, this is obviously unconstitutional. Federal courts have long recognized that computer code is First Amendment protected expression, as well as recipes for all manner of things, including items that would be illegal to make, like bombs and drugs. It stands to reason that posting a 3D model of a gun, even if it might be useful in making one, has more in common with sculpture than the conduct ITAR is aimed at preventing — like shipping rocket launchers to Libya.

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As the lawsuit dragged on, the Department of State realized its position was incompatible with the First Amendment. So, it sought to settle. An agreement was reached, and it seemed all was well. That is, until some politicians threw a total fit. They sued the federal government, asserting that the feds couldn’t settle the case, because they wanted the feds to respect the tortured interpretation of law the feds had just completely made up. Or something. Long story short, as the headlines and press releases will tell you clear as crystal, this was just a matter of politics. State politicians invoked the “g” word and fought desperately to push toward prohibition.

State sought to rid itself of the problem altogether by transferring the export of small arms and relevant technical data to the Department of Commerce. This doesn’t change the underlying law at all, it just takes the matter out of State’s hands. Commerce was pretty forthright that it had no interest in violating the First Amendment, at least not to the extent State had previously done. This struck ire among the panicked anti-gun side, who claimed it was the Trump Administration trying to “spread US gun violence beyond borders.”

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This latest move has been a group of state attorneys general, led by Washington State AG Bob Ferguson, to prevent State from performing this hand-off. In justifying this move, Ferguson points to horrifying “3D-printed gun crime,” citing a single instance from 2017, where a man was arrested for test-firing a gun in the forest.

Contrary to what these state attorneys general will tell you, this isn’t about safety. It’s not about the “gun industry” either, as I’m not sure the industry is tremendously concerned with posting their designs online for unlimited distribution. This is about controlling individuals, and about limiting the protection of the First Amendment.

If the First Amendment only recognized the right to engage in polite conversation, it wouldn’t be much of a right. It’s not limited to the printing press, either. The First Amendment protects all manner of expression, from poetry, to architecture, to computer code, to recipe. No matter its shape, a 3D model is a digital sculpture crafted by a modern artist. Don’t be fooled by attempts to classify this power grab as in the interest of your safety, or anything but for the sake of power itself. Bob Ferguson and his friends aren’t out for your best interests. They’re out to force the feds to take your rights.

Matthew Larosiere is the Director of Legal Policy for Firearms Policy Coalition and a Senior Contributor to Young Voices. He can be found on Twitter @MattLaAtLaw