I got a cryptic text from a friend this morning sending me to www.codeisfreespeech.com. That is the website which has established after the Attorney General of Washington State challenged Defense Distributed‘s settlement with the Department of Justice regarding ITAR. The District Court granted an injunction against Defense Distributed’s ability to put its files on the Internet. Note that it only enjoined Defense Distributed and a couple of others. It didn’t enjoin the any of the coalition of civil rights groups that set up www.codeisfreespeech.com.
Here is what I found when I went to the website.
It says that file access was being restricted due to a threat of prosecution. I don’t know which government entity is threatening them and infringing on the right of free speech but I’m sure we will find in the near future.
As an aside, I sat next to two guys from Defense Distributed on part of my trip home from the SHOT Show. They told me that the Ghost Gunner 2 mini-CNC machine would now be able to finish the Polymer 80 Glock-ish 80% lower as they had released the code to do it.
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Cody Wilson and Defense Distributed parted ways as of Friday, September 21st, according to the new Director of Defense Distributed, Paloma Heindorff. The news came in a press conference held in Austin, Texas yesterday (September 25th).
Good morning, thank you for attending. My name is Paloma Heindorff, I’m the new director of Defense Distributed and CEO of Ghost Gunner. I spent last three years at DD working as director of development and VP of Operations.
Cody Wilson tendered his resignation on Friday evening to focus on personal legal affairs. Defense Distributed Board of Directors accepted his resignation and thus his role at the company has been concluded.
Also on the stage at the news conference were Defense Distributed’s attorneys Josh Blackman of the South Texas College of Law Houston and Chad Flores of Houston law firm Beck Redden.
During the news conference, Heindorff continually emphasized that Wilson has no further involvement with Defense Distributed and that she would not answer any questions regarding his personal legal issues. She did say, “it was Cody Wilson’s decision to resign and Defense Distributed supported him in that.”
When she was asked by a reporter if anything in her views had changed on the case, Heindorff made a strong statement of her beliefs.
The same as we stood before. We believe in the right of people to have these files; we believe in our right to publish them. I believe very strongly in both the First and Second Amendment causes in the case. That’s where I stand. The same as where I stood a week ago.
Asked if she had spoken with Cody Wilson, she said, “Cody and I have been speaking. It is important for the transition. We still have some paperwork to do.”
Heindorff’s background is in the arts. When asked why she left New York and moved to Austin to work for Defense Distributed, she had this to say.
It’s the most effective and elegant activism I’d seen performed and I wanted to be a part of that. It’s just so beautiful, isn’t it, to exercise one’s rights like that and to do so in a way that pushes authorities to allow you to. Too often people are perturbed by threats, and I found it incredible that this company persisted.
Heindorff spoke about this in more detail at last year’s Gun Rights Policy Conference held in Dallas. You can see her comments in this video starting at about the 24:30 mark.
When asked about the case brought the attorney general of Washington State to prevent Distributed Defense from posting the files online , Josh Blackman emphasized that there was no change in the case. Later in the news conference, both he and attorney Chad Flores re-emphasized that they are DD’s attorney and that Cody Wilson has his own attorney for his issues. With regard to legal issues, all three pointed out that the approximately $400,000 raised for legal fees was for Defense Distributed and no monies were being used by Cody Wilson for her personal defense on charges of sex with a minor.
Heck, even the Brady Campaign released a statement concerning the change in leadership. The funny thing in their statement is their acknowledgement that the “Pandora’s box had been opened, and it won’t go away with Wilson.” Then they said they would continue to fight the threat. I find it funny that they realize the signal can’t be stopped and then in the next breath say they are going to fight it. There is nothing to compare to the posturing of the gun banners when they know the fight is futile.
The whole news conference is shown in the video below. The actual news conference begins at about the 2 minute mark.
“Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”
Benjamin Franklin, January 1775
This is a lesson that the Attorneys General from 20 states and the District of Columbia and US District Court Judge Robert Lasnik don’t seem to understand. Today Judge Lasnik extended his temporary restraining order preventing Defense Distributed, the Second Amendment Foundation, and Conn Williamson from distributing the 3-D printing and CNC files. The original order was due to expire tomorrow but now will go until the case is settled.
The fact that these files are and have been freely available from other sources on the Internet seems to have been ignored. The website CodeIsFreeSpeech is still up and running and has all of these files.
Lasnik said the states have submitted sufficient evidence that they are likely to suffer “irreparable harm” if the blueprints are published. The judge also said Defense Distributed’s First Amendment concerns were “dwarfed” by the states’ safety considerations.
Dwarfed? Really? The so-called safety considerations put forth totally ignore the facts surrounding the 3-D printing of the Liberator pistol. What this case is really about is the gun control lobby and their political allies realizing that 3-D printing along with low-cost CNC machines is the death knell for gun control and they don’t like it.
Lasnik said in his ruling he “presumes that the private defendants have a First Amendment right to disseminate the CAD files.” However, he viewed the restrictions on the right to be acceptable.
“That right is currently abridged, but it has not been abrogated,” Lasnik wrote in his ruling.
Lasnik’s wording appears to run counter to the First Amendment’s explicit protection against “abridging the freedom of speech.”
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances,” the First Amendment reads.
Lasnik said being forbidden from publishing gun designs on the internet didn’t mean Wilson’s free speech rights had been abrogated because Wilson was free to share the designs by other means—such as by mail or other forms of publishing.
“Regulation under the AECA means that the files cannot be uploaded to the internet, but they can be emailed, mailed, securely transmitted, or otherwise published within the United States,” Lasnik wrote. “The Court finds that the irreparable burdens on the private defendants’ First Amendment rights are dwarfed by the irreparable harms the States are likely to suffer if the existing restrictions are withdrawn and that, overall, the public interest strongly supports maintaining the status quo through the pendency of this litigation.”
Cody Wilson actually says he is elated by the decision and plans to take it to the next level. He also referred to it as “clownish” and an “intentional insult”.
“The order is a manifest injustice and literally admits to being an abridgment of the freedom of speech,”
I think it is time to see if the 9th Circuit believes more in freedom of speech or in being gun prohibitionists.
Harvard Law Professor Laurence Tribe is one of those liberal lions in academia. He’s put out leading books on the Constitution, testified before Congress, advocated for free speech, and is a hypocrite.
What was that last part?
Hypocrite as in saying he is an advocate for free speech but doesn’t believe that code is free speech.
I’m co-counsel with @deepakguptalaw on behalf of Everytown for Gun Safety, explaining why 3-D downloadable guns aren’t “speech” under the First Amendment — despite the DOJ change of position under Trump/Sessions ⬇️https://t.co/EVqez4vG8w
Here is a book that you need to buy that many in the gun control industry would like to see banned. It is called The Liberator Code Book: An Exercise in Free Speech. The book is exactly what it says it is – the 3-D printing code for the Liberator pistol in book form. Think of the $15 cost of this book as a donation to the advancement of free speech.
Years ago, the US government tried to control an encryption program called Pretty Good Privacy or PGP which was freely available on the Internet for download. They started a criminal investigation of Phil Zimmerman who was its creator for exporting “munitions without a license”. Starting to sound familiar to what the government wanted to do to Cody Wilson? It should. What Zimmerman did that stymied the government’s efforts was to have the entire source code published as a book by MIT Press. The code could then be read by OCR programs and voila! While the government can and does control the export of munitions, it does not control the export of books.
Fast forward to this year. The US Department of Justice realized that they could not win a free speech case against Defense Distributed and advised the State Department to come to an agreement with Cody Wilson et al. The State Department took this wise advice, signed the settlement, and US District Court Judge Robert Pitman dismissed the case with prejudice on July 30th. Dismissing the case with prejudice means that neither party can reopen the lawsuit.
This has always been a free speech case despite what the gun control industry, the anti-civil rights state attorneys general, and the gullible media would have you believe. Printing the source code in a physical book serves to doubly reinforce that.
US District Court Judge Robert Lasnik, a Clinton appointee, held an emergency hearing this afternoon in Washington State concerning a request for a Temporary Restraining Order to prevent Defense Distributed from publishing their files effective tomorrow. The TRO was sought by the Attorneys General of Washington State, Connecticut, Maryland, Oregon, Massachusetts, New York, New Jersey, Pennsylvania, and the District of Columbia.
MINUTE ENTRY for proceedings held before Judge Robert S. Lasnik- Dep Clerk: Kerry Simonds; Pla Counsel: Jeff Rupert, Jeff Sprung, Kristin Beneski, Todd Bowers; Def Counsel: Joel Ard, Josh Blackman, Eric Soskin, Tony Coppolino; CR: Nancy Bauer; Time of Hearing: 2:00 p.m.; Courtroom: 15106; Motion Hearing held on 7/31/2018 re 2 MOTION for Temporary Restraining Order filed by State of Washington. The Court addresses the parties. After hearing the arguments of counsel, and for reasons stated on the record, the Court GRANTS the Motion for Temporary Restraining Order and schedules a hearing for 8/10/2018 at 9:00 AM in Courtroom 15106 before Judge Robert S. Lasnik. An Order shall issue. (KERR) (Entered: 07/31/2018)
It is quite questionable whether Judge Lasnik actually had the authority to issue such an order. Moreover, it is also questionable whether the plaintiffs had any standing in this case. Of course, none of this has stopped activist judges determined to stop any and all actions decided by the Trump Administration.
As attorney and law professor Josh Blackman stated in his initial letter to the court:
For reasons we will explain in a supplemental pleading—filed seriatim to accommodate the rapid pace
of this litigation—the Plaintiffs cannot succeed on the merits: the State Department’s actions are not
subject to judicial review, the duty to notify Congress has not yet been triggered, and the Commodity
Jurisdiction procedure simply does not apply. See Exhibit D.
Fortunately, the bedrock principles of the First Amendment make this case much easier. A finding that
a constitutional right “‘is either threatened or in fact being impaired’. . . mandates a finding of irreparable
injury.”7 And “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably
constitutes irreparable injury.”8 Outside of court papers, the Attorney General of Washington bluntly
acknowledged the purpose of his litigation: to “make it as difficult as humanly possible to access this
information.”9 That statement against interest, by itself, is enough to deny the Temporary Restraining
Order in its entirety.
The Plaintiffs can challenge the proposed rule in due time when it is finalized. But they cannot mount
a collateral attack in order to censor speech.
Blackman goes on to say in a subsequent letter that the District Court for the Western District of Washington lacks “subject matter jurisdiction.”
This ruling illustrates even more poignantly that Brett Kavanaugh needs to be confirmed sooner than later to replace Justice Anthony Kennedy.
UPDATE: Judge Robert Lasnik did issue a seven page opinion to accompany his temporary restraining order. It can be found here. As it is, he bought the argument of Washington State et al in its entirety and ignored the free speech issues completely. The only mention of the First Amendment was with reference to the original complaint filed by Defense Distributed and SAF.
Plaintiffs have also shown a likelihood of irreparable injury if the downloadable CAD
files are posted tomorrow as promised. A side effect of the USML has been to make it more
difficult to locate and download instructions for the manufacture of plastic firearms. If an
injunction is not issued and the status quo alters at midnight tonight, the proliferation of these
firearms will have many of the negative impacts on a state level that the federal government
once feared on the international stage. Against this hardship is a delay in lifting regulatory
restrictions to which Defense Distributed has been subject for over five years: the balance of
hardships and the public interest tip sharply in plaintiffs’ favor.
Absent from Lasnik’s 7-page ruling is any consideration of the First Amendment implications of censoring information about building firearms. This has been legal since before the United States was founded; Reason’s special Burn After Reading issue even includes helpful instructions for constructing a handgun from legally available parts.
Crucially, also absent from the opinion is any recognition of the difficulty of censoring information once it’s already been published to the web.
The files, as I call them, Freedom Files, are now widelyavailable on the Internet if not available currently at www.defcad.com.
As I noted earlier this evening, Judge Robert Lasnik issued a temporary restraining order preventing Defense Distributed, the Second Amendment Foundation, and Conn Williamson from posting code files for 3-D printing and CNC machining of certain firearms. However, once the genie is out of the bottle, it’s out. Or in this case, once the code “escaped” to the Internet, it’s out and there is not a damn thing the gun control lobby, the gun prohibitionists, ideologue state attorney generals, or Constitution-ignoring judges can do about it.
Tonight, a new website was established by a coalition of civil and firearms rights groups has been set up and it has a number of files pertaining to 3-D printing and CNC machining on it. The site is called CodeIsFreeSpeech.com. I would encourage everyone to go to that website and download each and every file on it. You may never use the file nor even have a desire to engage in making your own firearm. Nonetheless, the more copies of each and every one of these files that out in the ether of the Internet, the less likely any attempt to stop it will be successful. Think of them as Freedom Files.
The coalition of groups behind this new website issued this release announcing the website – which by the way is up and running – and their intent behind doing so. None of these groups were parties to any of the lawsuits concerning the files of Defense Distributed.
SACRAMENTO, CA (July 31, 2018) — Tonight, the organizations and individuals behind CodeIsFreeSpeech.com,
a new Web site for the publication and sharing of firearm-related
speech, including machine code, have issued the following statement:
Constitution’s First Amendment secures the right of all people to
engage in truthful speech, including by sharing information contained in
books, paintings, and files. Indeed, freedom of speech is a bedrock
principle of our United States and a cornerstone of our democratic
Republic. Through CodeIsFreeSpeech.com,
we intend to encourage people to consider new and different aspects of
our nation’s marketplace of ideas – even if some government officials
disagree with our views or dislike our content – because information is
code, code is free speech, and free speech is freedom.
any tyrants wish to chill or infringe the rights of the People, we
would welcome the opportunity to defend freedom whenever, wherever, and
however necessary. Hand-waving and hyperbole are not compelling
government interests and censorship is not proper tailoring under the
is no doubt that Cody Wilson and Defense Distributed have inspired
countless Americans to exercise their fundamental, individual rights,
including through home gunsmithing. Through CodeIsFreeSpeech.com,
we hope to promote the collection and dissemination of truthful,
non-misleading speech, new and evolving ideas, and the advancement of
the Second Amendment right to keep and bear arms.
is a publicly-available Web site for truthful, non-misleading speech
and information that is protected under the United States Constitution.
The purpose of this project is to allow people to share knowledge and
empower them to exercise their fundamental, individual rights. CodeIsFreeSpeech.com
is a project of Firearms Policy Coalition, Firearms Policy Foundation,
The Calguns Foundation, California Association of Federal Firearms
Licensees, and a number of individuals who are passionate about the
Constitution and individual liberties.
Firearms Policy Coalition (www.firearmspolicy.org)
is a 501(c)4 grassroots nonprofit organization. FPC’s mission is to
defend the Constitution of the United States, especially the
fundamental, individual Second Amendment right to keep and bear arms,
through advocacy, legal action, education, and outreach.
Firearms Policy Foundation (www.firearmsfoundation.org)
is a 501(c)3 grassroots nonprofit organization. FPF’s mission is to
defend the Constitution of the United States and the People’s rights,
privileges and immunities deeply rooted in this Nation’s history and
tradition, especially the inalienable, fundamental, and individual right
to keep and bear arms.
The Calguns Foundation (www.calgunsfoundation.org)
is a 501(c)3 non-profit organization that serves its members,
supporters, and the public through educational, cultural, and judicial
efforts to advance Second Amendment and related civil rights.
California Association of Federal Firearms Licensees (www.calffl.org)
is a 501(c)6 nonprofit organization serving its members and the public
through direct and grassroots issue advocacy, regulatory input, legal
efforts, and education. CAL-FFL’s membership includes firearm dealers,
training professionals, shooting ranges, licensed collectors, others who
participate in the firearms ecosystem.
Less than 24 hours after President Trump nominated Judge Brett Kavanaugh to replace Justice Anthony Kennedy on the Supreme Court, the Department of Justice comes to an agreement with the Second Amendment Foundation regarding their lawsuit on behalf of Cody Wilson and Defense Distributed. I know I say that actions have consequences but this one is a “Wow!”
BELLEVUE, WA – The Department of Justice and Second Amendment Foundation have reached a settlement in SAF’s lawsuit on behalf of Cody Wilson and Defense Distributed over free speech issues related to 3-D files and other information that may be used to manufacture lawful firearms.
SAF and Defense Distributed had filed suit against the State Department under the Obama administration, challenging a May 2013 attempt to control public speech as an export under the International Traffic in Arms Regulations (ITAR), a Cold War-era law intended to control exports of military articles.
Under terms of the settlement, the government has agreed to waive its prior restraint against the plaintiffs, allowing them to freely publish the 3-D files and other information at issue. The government has also agreed to pay a significant portion of the plaintiffs’ attorney’s fees, and to return $10,000 in State Department registration dues paid by Defense Distributed as a result of the prior restraint.
Significantly, the government expressly acknowledges that non-automatic firearms up to .50-caliber – including modern semi-auto sporting rifles such as the popular AR-15 and similar firearms – are not inherently military.
“Not only is this a First Amendment victory for free speech, it also is a devastating blow to the gun prohibition lobby,” noted SAF founder and Executive Vice President Alan M. Gottlieb. “For years, anti-gunners have contended that modern semi-automatic sport-utility rifles are so-called ‘weapons of war,’ and with this settlement, the government has acknowledged they are nothing of the sort.
“Under this settlement,” he continued, “the government will draft and pursue regulatory amendments that eliminate ITAR control over the technical information at the center of this case. They will transfer export jurisdiction to the Commerce Department, which does not impose prior restraint on public speech. That will allow Defense Distributed and SAF to publish information about 3-D technology.”
Blackman’s blog has all the major pleadings in this case. SAF and Wilson had submitted a petition for a writ of certiorari to the US Supreme Court after losing in the 5th Circuit. This writ had not been denied as it was still in the pleading and reply process. Cert was denied in January 2018.
This is a win for free speech, a win for gun rights, a loss for prior restraint, and a giant FU to the State of California and their paranoia over “ghost guns”.
WIRED Magazine goes into great detail about what Cody has been up to the last few years, the why of Defense Distributed, the gnashing of teeth by the antis, and the blurred line between the First and Second Amendment.
If the name Cody Wilson rings a bell, it should. Cody is the person who developed a 3-D printed firearm and then put the plans on the Internet. His company, Defense Distributed, is now in a court battle with the State Department over another of his 3-D printing plans which they have, for now, forced off the Internet. I met Cody at the 2016 Gun Rights Policy Conference when the Polite Society Podcast interviewed him. Cody is what I call a hard-core libertarian. However, what Cody is not is an alt-right, white supremacist, racist, fill-in-the-blank.
According to Wikipedia, Cloudfare is a ” content delivery network, Internet security services and distributed domain name server services, sitting between the visitor and the Cloudflare user’s hosting provider, acting as a reverse proxy for websites.” They supposedly hold free speech is sacred and that includes what is posted on a website. That said, Cloudflare CEO Matthew Prince kicked off the neo-Nazi website The Daily Stormer from his service after Charlottesville on August 16th. He attributed his change of mind about free speech for all to waking up grumpy that morning.
Who is right and who is wrong I am not sure. However, it does seem awfully suspicious that service was terminated so soon after that of the Daily Stormer. I don’t know if it was retribution for Hatreon which has no “hate speech” restrictions or not.
As of this morning, GhostGunner.net and Hatreon.net are back up on the Internet. I am not tech-savvy enough to know where these sites are being hosted or who is providing all the Internet services. All I know is that Cody Wilson is a hard-core free speech activist and I’m glad to see he is back on the Internet.
Cody Wilson of Defense Distributed and the Second Amendment Foundation have joined forces to sue the State Department on First, Second, and Fifth Amendment grounds. They contend the the State Department through its Directorate of Defense Trade Controls misused ITAR regulations to force Defense Distributed to take down its files for the Liberator pistol among other items. The State Department’s Office of Legal Counsel as far back as 1978 had said that the use of ITAR to impose prior restraint on “privately generated unclassified information in the public domain” violated the First Amendment.
The big guns are being brought to bear on this fight. Lead counsel is Alan Gura. The legal team also includes Prof. Josh Blackman of South Texas College of Law who has published on this topic in the Tennessee Law Review and attorneys from the global intellectual property firm of Fish & Richardson (no relation!). Fish & Richardson just happens to be the top intellectual property firm in the United States by all rankings.
SAF Sues Feds Over Censorship Of 3-D Firearms Printing Information
BELLEVUE, WA – The Second Amendment Foundation today joined Defense Distributed of Austin, Texas, in filing a federal lawsuit against Secretary of State John Kerry, the Department of State and other federal officials, seeking to stop the Government’s unconstitutional censorship of information related to the three-dimensional printing of arms.
The Government’s restraint against the publication of this critical information, under the guise of controlling arms exports, violates the First Amendment right to free speech, the Second Amendment right to bear arms, and the Fifth Amendment right to due process, the lawsuit alleges.
SAF and Defense Distributed seek to publish 3-D printing information at no cost to the public. Constitutional attorney Alan Gura of Gura & Possessky leads the litigation team, which also includes William “Tommy” Jacks, Bill Mateja, and David Morris of Fish & Richardson; export control counsel Matthew Goldstein, and constitutional law Professor Josh Blackman.
“Americans have always been free to exchange information about firearms and manufacture their own arms,” said SAF founder and Executive Vice President Alan M. Gottlieb. “We also have an expectation that any speech regulations be spelled out clearly, and that individuals be provided basic procedural protections if their government claims a power to silence them.”
The lawsuit asserts the defendants are unlawfully applying International Traffic in Arms Regulations (ITAR) to prevent the plaintiffs from exercising in free speech on the Internet and other forums. ITAR “requires advance government authorization to export technical data,” the complaint asserts. There are criminal and civil penalties for violations, ranging up to 20 years in prison and fines of up to $1 million per violation.
Defense Distributed generated technical information on various gun-related items, which it published on the Internet. But it removed all the files from its servers upon being warned that it “may have released ITAR-controlled technical data without the required prior authorization from the Directorate of Defense Trade Controls (DDTC), a violation of the ITAR.” In June 2013, Defense Distributed submitted various published files to DDTC for review of a machine called the “Ghost Gunner.” In April, DDTC said the machine does not fall under ITAR, but that software and files are subject to State Department jurisdiction.
“Defense Distributed appears to be caught in what seems to be a bureaucratic game of merry-go-round,” Gottlieb said. “The right to keep and bear arms includes the ability to acquire or create arms. The government is engaging in behavior that denies the company due process under the Fifth Amendment. We’re compelled to file this action because the bureaucracy is evidently playing games and it’s time for these agencies to behave.”
Just think, if Hillary Clinton had hung around a little longer at the State Department, the suit could have been titled Defense Distributed et al v. Hillary Clinton et al!
UPDATE: This case has caught the attention of the New York Times and Wired. I’m not surprised by Wired but the Times is a bit surprising. They note that Cody Wilson and Defense Distributed have a “high-powered legal team” and quote another First Amendment expert as saying this lawsuit is “not frivolous”. Hmm.