Defense Distributed et al v. Grewal Archives -

SCOTUS Tells NJ Attorney General No

New Jersey Attorney General Gurbir Grewal tried to avoid the jurisdiction of Texas courts over his attempt to punish free speech. Grewal had sent a cease and desist letter to Defense Distributed warning them not to violate New Jersey law. Defense Distributed and the Second Amendment Foundation sued Grewal in US District Court for the Western District of Texas asserting he violated DD’s First and Second Amendment rights and asked for an injunction. While the US District Court agreed with Grewal in dismissing the lawsuit, the US 5th Circuit Court of Appeals did not and said he was subject to the jurisdiction of the Texas court.

Today, the US Supreme Court denied Grewal’s writ of certiorari and essentially agreed with the 5th Circuit that he was subject to the jurisdiction of the Texas court for his actions.

The 5th Circuit summarized nicely the complaint of Defense Distributed and the SAF in the case.

Just before the Attorneys General sued in Washington, Defense Distributed and SAF brought the instant action
in the Western District of Texas challenging select enforcement actions taken by the state Attorneys General.
Of relevance to this appeal, plaintiffs alleged these actions by Grewal: (1) sending a cease-and-desist letter
threatening legal action if Defense Distributed published its files; (2) sending letters to third-party internet service
providers based in California urging them to terminate their contracts with Defense Distributed; (3) initiating a
civil lawsuit against Defense Distributed in New Jersey; and (4) threatening Defense Distributed with criminal
sanctions at a live press conference. Further, these actions, coupled with the injunctive orders issued in the
Washington litigation, have caused Defense Distributed to cease publication of its materials. The plaintiffs asserted,
inter alia, that these actions infringed the exercise of their First Amendment freedoms and constituted tortious
interference with the State Department’s settlement agreement.

As you might expect, the Second Amendment Foundation was quite pleased with this result.

BELLEVUE, WA – The U.S. Supreme Court has denied a petition for certiorari from New Jersey Attorney General Gurbir Grewal in his effort to escape the jurisdiction of the Fifth U.S. Circuit Court of Appeals in the ongoing First Amendment case brought by Defense Distributed and the Second Amendment Foundation.
The Fifth Circuit had ruled unanimously that Grewal, because of his efforts to prevent distribution of materials related to the 3D printing of firearms, was subject to the jurisdiction of the Texas courts. Defense Distributed is headquartered in Texas.
“It’s not every day you beat a state attorney general at the Supreme Court,” observed SAF founder and Executive Vice President Alan M. Gottlieb, “especially when he had been supported by other anti-gun state attorneys general from New York, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Mexico, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia and Washington, and the District of Columbia. This is a huge victory.”
The Defense Distributed case has always been about the First Amendment, Gottlieb observed. He recalled how Grewal had moved to dismiss the SAF/Defense Distributed lawsuit filed in the Western District of Texas “for lack of personal jurisdiction.” But the Fifth Circuit appellate ruling placed Grewal’s efforts squarely under that circuit’s jurisdiction and the SCOTUS allowed that to stand.
“Anti-gun attorneys general need to be held accountable for threatening gun owners and the firearms industry,” Gottlieb stated, “and that includes efforts to prevent distribution of information relating to 3D printing. Grewal tried to enjoin national distribution of Defense Distributed’s files on the Internet.
“This is one of several cases against the State of New Jersey and Grewal in which SAF is involved,” he continued. “We’re also suing the state, with several other parties, over the state’s capricious carry laws and gun purchase permitting process.”
The next move in the SAF-Defense Distributed case is their injunction request at the Federal District court, where plaintiffs will pursue their injunction request.

With anti-gun state attorneys general trying to impose their will outside the confines of their own state on the firearms industry, I think this ruling will be helpful in fighting back against them.

Where The 1A Meets The 2A

As I mentioned the other day, the website sponsored by a coalition of civil rights groups was threatened by prosecution if they didn’t take down certain code files. CodeIsFreeSpeech.com was put up after the anti-gun Attorney General of Washington State and a host of fellow traveler AGs went to court to suppress computer code assembled by Defense Distributed. These groups were not a party to that lawsuit and were not enjoined from distributing them on the Internet.

It turns out that the threat of prosecution came from New Jersey Attorney General Gurbir Grewal. Grewal had demanded server company Cloudfare delete CodeIsFreeSpeech.com’s files or charges would be filed for them being in violation of a NJ state law.

Grewal had been recently successful in getting a lawsuit against him by Defense Distributed filed in the State of Texas dismissed on the grounds that it should have been brought in New Jersey. Mind you, that the dismissal was not on the merits of the case but rather merely whether a US District Court in Texas had jurisdiction.

He should have remembered the old saying, “Be careful what you wish for”, as suit has now been filed in US District Court for the District of New Jersey. Now he will not be facing just Defense Distributed but also the Second Amendment Foundation, the Firearms Policy Coalition, the Firearms Policy Foundation, the Calguns Foundation, and CAL-FFL. The individual plaintiff in the case is Brandon Combs who is executive director of the Calguns Foundation and president of both the Firearms Policy Coalition and the Firearms Policy Foundation. So now Grewal is not facing merely one plaintiff but six institutional plaintiffs and one individual plaintiff.

In a press release sent out yesterday, the groups had this to say about the lawsuit:

TRENTON, N.J. (February 5, 2019) — Today, attorneys for six advocacy organizations and one individual, Firearms Policy Coalition founder Brandon Combs, filed a new lawsuit and a motion seeking a restraining order and preliminary injunction against New Jersey Attorney General Gurbir Grewal. The case was filed just days after Grewal’s Office of the Attorney General sent a threat of prosecution to Cloudflare, a major Internet services company headquartered in San Francisco, about www.CodeIsFreeSpeech.com. A copy of key court filings can be viewed or downloaded at www.codeisfreespeechlawsuit.com.

According to the complaint, on Saturday, February 3 the CodeIsFreeSpeech.com website’s act of republishing some of Defense Distributed’s digital firearms information “was met with yet another of Grewal’s Orwellian take-down orders,” demanding that Cloudflare “delete all files described within 24 hours or [Grewal’s Office] will be forced to press charges.”

“By issuing a takedown demand against” the entire website, “Grewal sought to compel the complete and total suppression of the political speech at CodeIsFreeSpeech.com, the links to other advocacy websites and their educational and political resources, links to political tee shirts, and even the very text of the United States Constitution itself,” the plaintiffs said in the filing. Attorneys for the plaintiffs also filed a motion seeking a temporary restraining order and preliminary injunction against Grewal. The Attorney General’s threats of prosecution and other civil enforcement actions under New Jersey laws, the plaintiffs say, violate their constitutional rights.

Last November, New Jersey Governor Phil Murphy signed a new speech crime into law, in Senate Bill 2465. Among other things, it created a new “third degree crime” for “a person to distribute by any means, including the Internet, to a person in New Jersey” certain kinds of speech, including “digital instructions in the form of computer-aided design files or other code or instructions stored and displayed in electronic format as a digital model that may be used to program a three-dimensional printer…”

CodeIsFreeSpeech.com “is a publicly available website for the publication and republication of truthful, non-misleading, non-commercial political speech and information that is protected under the United States Constitution,” the complaint says. “Its purpose is to allow people to share knowledge and empower them to exercise their fundamental, individual rights. It was created and developed during the week of July 22, 2018—long before the State enacted Senate Bill 2465.”

The plaintiffs are represented by attorneys Chad Flores, Daniel Hammond, and Hannah Roblyer of Texas-based Beck Redden LLP and Daniel L. Schmutter of New Jersey law firm Hartman & Winnicki.

The CodeIsFreeSpeech.com website can be additionally accessed through URLs GurbirGrewalisaTyrant.com and PhilMurphyisaTyrant.com.

The plaintiffs have filed a suit seeking declaratory and injunctive relief. Moreover, at the same time they also filed a motion for a temporary restraining order and a preliminary injunction. They are asking the court to declare the New Jersey law in violation of the First and Second Amendments, the Commerce Clause, and the Due Process and Equal Protection clauses of the 14th Amendment. Moreover, they want the court to declare Federal law preempts the New Jersey law and immunizes the plaintiffs from prosecution.