- The Washington Times - Thursday, September 22, 2016

National security concerns raised by the U.S. State Department trump the constitutional rights of a company prohibited from publishing the digital blueprints for three-dimensional printed guns, a federal appeals court ruled this week.

Members of the 5th Circuit Court of Appeals agreed 2-1 on Tuesday to uphold a lower court’s ruling against Defense Distributed, a Texas-based nonprofit that came under fire in 2013 for allowing internet users to freely download files that could be used to manufacturer untraceable firearms with 3-D printers.

Within months of making those files available online, the State Department served Defense Distributed with a letter in 2013 informing the company that it was in violation of the International Traffic in Arms Regulations (ITAR) and was required to take the blueprints down. The company complied, but sued the State Department on the grounds that preventing the publishing of further 3-D printer files amounted to unconstitutional “prior restraint” on its freedom of speech.

Defense Distributed’s motion for a preliminary injunction to keep that ban from being enforced was denied in District Court, spurring an appeal that saw the Fifth Circuit affirm the lower court’s ruling with this week’s decision.

In its split decision Tuesday, a panel of appellate court judges agreed with the State Dept. that allowing Defense Distributed to upload further blueprints would endanger national security because it would enable Americans and foreigners alike to amass untraceable guns that can be made with ease.

“Ordinarily, of course, the protection of constitutional rights would be the highest public interest at issue in a case. That is not necessarily true here, however, because the State Department has asserted a very strong public interest in national defense and national security. Indeed, the State Department’s stated interest in preventing foreign nationals — including all manner of enemies of this country — from obtaining technical data on how to produce weapons and weapon parts is not merely tangentially related to national defense and national security; it lies squarely within that interest,” the majority ruled.

“The district court’s decision was not based on discounting Plaintiffs-Appellants’ interest, but rather on finding that the public interest in national defense and national security is stronger here, and the harm to the government is greater than the harm to Plaintiffs-Appellants. We cannot say the district court abused its discretion on these facts.”

The panel’s lone dissenter, District Judge Edith Jones, called the State Department’s efforts at curbing the company’s online actions “pure content-based regulation.”

“In sum, it is not at all clear that the State Department has any concern for the First Amendment rights of the American public and press. Indeed, the State Department turns freedom of speech on its head by asserting, ‘The possibility that an Internet site could also be used to distribute the technical data domestically does not alter the analysis…’ The Government bears the burden to show that its regulation is narrowly tailored to suit a compelling interest. It is not the public’s burden to prove their right to discuss lawful, non-classified, non-restricted technical data,” she wrote.

Defense Distributed did not immediately respond to requests for comment when contacted this week by Ars Technica where the ruling was first reported. According to the website, however, the company could appeal Tuesday’s ruling and ask the 5th Circuit’s full bench to re-hear the case “en banc.”

Blueprints for Defense Distributed’s products were downloaded hundreds of thousands of times before the company was contacted by the State Department, and its files are still widely available online through other website.

Gartner Inc., a technology research and advisory firm, predicted last year that 3-D printer shipments would exceed 496,475 units by the end of 2016 and likely double every year through the end of the decade. Around one-quarter of the units currently being sold are priced at less than $1,000, the firm said last October.

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