First Amendment

Uncategorized

Ben Franklin Was Correct

August 27, 2018 by 3 Comments

“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.

Judge Lasnik somewhat acknowledged that this is a First Amendment case.

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.

Stephen Gutowski at the Free Beacon has more on his ruling:

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.

Uncategorized

“You Can’t Stop The Signal, Mal”

August 1, 2018 by 2 Comments

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:
Our
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.
Should
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
law.
There
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.
CodeIsFreeSpeech.com
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.
Uncategorized

Firearms Policy Coalition Sues California on First Amendment Grounds – Again

August 8, 2016 by

The Firearms Policy Coalition has sued the Legislative Counsel of California, Diane Boyer-Vine, for her attempts to suppress free speech. The suit centers around a blog post that posted publicly available addresses and phone numbers of Assembly members who voted for gun control. The post by FPC member “Publius” on his or her blog, The Real Write Winger, was removed by WordPress.com after the Legislative Counsel said it violated California law. The suit, as described in the press release below, seeks to have California Government
Code section 6254.21(c) declared unconstitutional and to enjoin its enforcement.

This is the second lawsuit this year that the Firearms Policy Coalition has brought this year on First Amendment grounds. In the first lawsuit which they won, they challenged the California Legislature’s ban on the use of video footage from floor debates in political ads. This is an interesting tactic as it forces judges to apply, in most cases, strict scrutiny.

More on the lawsuit and the whole back story is below:

SACRAMENTO (August 5, 2016) A just-filed First Amendment lawsuit challenges the State of California’s attempt to censor a political blog using an unusual and unconstitutional “takedown” process authorized by a state statute. The lawsuit is funded by the Firearms Policy Coalition, and filed on behalf of one of the Coalition’s members.


“Publius” (a pseudonym, since the challenged law carries a criminal penalty) runs a political blog under the alias “The Real Write Wringer” and writes extensively about California politics, civil liberties, and the Second Amendment.


The case, Doe Publius v. Diane Boyer-Vine, Legislative Counsel of California, seeks a restraining order against and challenges California Government Code section 6254.21(c), which broadly restricts the publication of the home address or telephone number of any “elected or appointed official” on the Internet.


Following California Governor Jerry Brown’s July 1 signing of six new gun control laws, the FPC member (pseudonymized as “Publius” in the lawsuit due to potential criminal liability) published a post on July 5 saying, in part, “… below is the names, home addresses, and home phone numbers of all the legislators who decided to make you a criminal if you don’t abide by their dictates. So below is the current tyrant registry. These are the people who voted to send you to prison if you exercise your rights and liberties. This will be a constantly updated list depending on future votes ….”


Soon after, the political blog’s hosting site, WordPress.com, received a censorious takedown letter from the California Legislative Counsel threatening litigation if the “tyrant registry” wasn’t removed due to the “grave risk” that it supposedly posed to the safety of elected officials.


In her letter, Deputy Legislative Counsel Kathryn Londenberg told WordPress.com that “My office represents the California State Legislature” and that it had “come to [their] attention that the home addresses of 14 Senators and 26 Assembly Members have been publically [sic] posted on an Internet Web site hosted by you without the permission of these elected officials.” She went on to say that if the content was not taken down within 48 hours, “we reserve the right to file an action seeking injunctive relief, as well as associated court costs and attorney’s fees.”


WordPress.com, which sees about 83 million unique monthly visits, and Automattic capitulated immediately, removing Publius’ “tyrant registry” content and subsequently barring them from publishing any similar content.


“Our Publius lawsuit argues that a State of California statute and the Legislative Counsel’s demand letter threatening legal action and penalties unconstitutionally forced WordPress into taking down the material,” explained Brandon Combs, president of Firearms Policy Coalition.


“Our member’s truthful, non-threatening speech was attacked mere days after the elected subjects of their speech carpet-bombed the Bill of Rights in the largest legislative attack on Second Amendment rights in decades.”


“FPC will not tolerate it or its members voices being censored by any government.”


“The First Amendment protects the publication of facts about government officials, especially facts drawn from the public record,” explained Eugene Volokh, an attorney and UCLA law professor working on the Publius case.


“Of course, the First Amendment doesn’t protect true threats of violence, but the statute and the California government’s demand letter forbid all publication of these facts, whether or not accompanied by threats.”


The publication of legislators’ addresses and phone numbers can serve a variety of lawful purposes. For example, residential picketing is allowed in many places, and concerned citizens can hardly engage in such picketing to demand action from their legislators without knowing where they live.


And even where a local government has a valid content-neutral restriction on residential picketing, marching through residential neighborhoods, or even walking a route in front of an entire block of houses, is likely constitutionally protected conduct.


In Brayshaw v. City of Tallahassee, 709 F. Supp. 2d 1244 (N.D. Fla. 2010), the ACLU of Florida challenged a similar statute and got it struck down in an order by United States District Court Judge Richard Smoak, who held that the Florida law was facially “invalid as unconstitutional under the First and Fourteenth Amendments.”


Following the victory, Randall Marshall, ACLU of Florida Legal Director, said that it “cannot be a crime to publish truthful information. With very rare exceptions, courts protect the publication of truthful information that is already available to the public.”


Publius is represented by Bradley Benbrook and Stephen Duvernay of Benbrook Law Group as well as Eugene Volokh, a UCLA law professor who has written and taught extensively about the First and Second Amendments.


Before joining the UCLA faculty 20 years ago, Volokh clerked for Judge Alex Kozinski of the Ninth Circuit Court of Appeals and Justice Sandra Day O’Connor of the U.S. Supreme Court. He also operates the popular legal blog “The Volokh Conspiracy,” now hosted at the Washington Post.


A copy of the complaint, which includes exhibits containing the censored content, can be viewed or downloaded at https://www.firearmspolicy.org/wp-content/uploads/2016/08/2016-08-05-Complaint-with-Exhibits-filed.pdf.

Uncategorized

Now For Some Good News Out Of California

June 10, 2016 by 4 Comments

It seems like all the news coming out of California today was uniformly bad. However, there is one bright spot. As I reported two weeks ago, two firearms groups plus a number of individual plaintiffs sued for a restraining order against the California law that bans the use of the video feed from the California legislature for political purposes. UCLA Law Professor Eugene Volokh is one of the attorneys for the plaintiffs and he wrote about the case at this morning on the Washington Post’s Volokh Conspiracy blog.

As Firearms Policy Coalition reported a few hours ago on Facebook, US District Court Judge Morrison England has granted the request for a preliminary injunction against enforcement of Cal. Gov. Code § 9026.5. Professor Volokh also has confirmed that in a short post as well.

This is a win for the First Amendment and the Second Amendment. The Firearms Policy Coalition Second Amendment Defense Committee and others can now use video from the legislature in ads opposing Lt. Gov. Gavin Newsom’s gun control initiative.

UPDATE: Gene Hoffman of CalGuns Foundation just pointed out something that I missed. The same Judge Morrison England who ruled for the FPCSADC on First Amendment grounds was the same Judge England whose decision against concealed carry in the Richards case was upheld in today’s ruling from the 9th Circuit. How ironic.

Uncategorized

First Amendment Lawsuit With Second Amendment Implications In California

May 27, 2016 by 1 Comment

Two Second Amendment groups and three individual plaintiffs including a Congressional candidate have filed suit against California Attorney General Kamala Harris. The suit filed in US District Court for the Eastern District of California seeks an injunction against a California law that makes it illegal to use video footage from the California State Assembly in a political campaign or ballot initiative. The suit is brought on First Amendment grounds as the law restricts political speech. The plaintiffs would have used video footage from the State Assembly to produce ads opposing Lt. Gov. Gavin Newsom’s gun control ballot initiative and the gun control bills being rammed through the legislature.

One of the individual plaintiffs is filmmaker Kris Koenig who produced the Second Amendment documentary Assaulted: Civil Rights Under Fire.

An interesting note about the lawsuit is that UCLA law professor Eugene Volokh who blogs at the Washington Post’s Volokh Conspiracy is one of the attorneys representing the plaintiffs.

A copy of the complaint can be found here.

A release with more details on the case and the plaintiffs is below.

SACRAMENTO­­­­­­ – Today, two civil rights groups opposing Gavin Newsom’s gun control ballot initiative were joined by two Emmy Award-winning filmmakers, a San Diego-based civil rights activist, and a candidate for Congress in filing a new First Amendment lawsuit challenging the State of California’s ban on using Assembly video footage for political speech.

The complaint, filed in the Eastern District of California federal court, states that California Government Code section 9026.5 prohibits the use of the public video feed from the California State Assembly “for any political or commercial purpose, including . . . any campaign for elective public office or any campaign supporting or opposing a ballot proposition submitted to the electors.”

Tim Donnelly, a plaintiff in the case who is currently running for Congress, was previously threatened by the Assembly Rules Committee for using a clip of a hearing in which he participated as an elected Assembly member.

Violating the statute is a misdemeanor crime that can lead to imprisonment in a county jail for up to six months, a fine of up to one thousand dollars, or both imprisonment and fine. Because of the importance of political speech and the criminal liability under the statute, the plaintiffs say they’ll be asking the court to issue a restraining order against the law.

“Millions of good, law-abiding people are at risk of becoming criminals through dozens of new gun control bills and the most dangerous, anti-civil rights ballot initiative we’ve seen in decades,” explained Firearms Policy Coalition Second Amendment Defense Committee Chairman Brandon Combs. “Yet Section 9026.5 says it would be a crime for us to use video of the people’s Assembly hearings and votes in political speech. It is shocking that this law was ever passed in a state that claims to value diversity, tolerance, free speech, and open government.

“This blatantly unconstitutional statute should be opposed by people across the political spectrum.”

“Assembly Speaker Anthony Rendon and Senate President Kevin de León are playing fast and loose with legislative rules, but California law says that it’s a crime for us to use Assembly video to oppose their extreme agenda. We filed this lawsuit because we’re not going to stand by and watch while Senator de León and Gavin Newsom compete to burn the Bill of Rights to the ground first,” concluded Combs.

The plaintiffs are represented by Bradley Benbrook and Stephen Duvernay of Benbrook Law Group, PC, and Eugene Volokh, a UCLA law professor who has written and taught extensively about the First and Second Amendments. Before joining the UCLA faculty, Volokh clerked for Judge Alex Kozinski of the Ninth Circuit Court of Appeals and Justice Sandra Day O’Connor of the U.S. Supreme Court. He also operates the popular legal blog “The Volokh Conspiracy,” now hosted at the Washington Post.

A copy of the complaint for Firearms Policy Coalition Second Amendment Defense Committee, et al. v. Attorney General Kamala Harris can be viewed or downloaded at www.fpcsadc.org/wp-content/uploads/2016/05/2016-05-26-Complaint-filed.pdf.

Firearms Policy Coalition Second Amendment Defense Committee (FPCSADC) is the official pro-gun grassroots political action committee (PAC) dedicated to opposing Gavin Newsom’s gun control ballot initiative. FPCSADC was formed days after Newsom announced his intention to put his gun control scheme on the November 2016 ballot and has been fighting against the initiative since its inception. More information about FPCSADC can be found at www.StopNewsom.com.

Firearms Policy Coalition (FPC) is a grassroots, nonprofit public benefit organization. FPC’s mission is to protect and defend the Constitution of the United States, especially the fundamental, individual Second Amendment right to keep and bear arms. More information about FPC can be found at www.firearmspolicy.org.

Uncategorized

Dick Is A Dick

May 27, 2013 by 5 Comments

Sen. Richard Durbin (D-IL), Majority Whip and the No. 2 Democrat in the Senate Leadership, was a guest on Fox News Sunday along with Sen. Lindsey Graham (R-SC).

Part of the discussion surrounded having Attorney General Eric Holder investigate Holder’s own role in the DOJ’s targeting of journalists. Graham said there should be a Special Counsel appointed to investigate the matter. Durbin disagreed.

From the transcript of Durbin’s remarks:

But here is the bottom line: the media shield law, which I am prepared to support, and I know Senator Graham supports, still leaves an unanswered question which I have raised many times, what is a journalist today, 2013?

We know it’s someone who works for Fox or A.P., but does it include a blogger? Does it include someone who’s tweeting? Are these people journalists and entitled to constitutional protection?

It is obvious to me that Sen. Durbin has about as much respect for my First Amendment rights as he does for my Second Amendment rights. It really isn’t that surprising coming from a statist such as Durbin.

My response while I’m still entitled to any measure of First Amendment rights is that Dick Durbin can go straight to hell and take the rest of his ilk with him.

Uncategorized

Editorial Stupidity

August 9, 2012 by 1 Comment

The Norfolk Virginian-Pilot published an editorial today entitled “Don’t surrender to such violence”. While there were things I could agree with in it such as increased funding for mental health and substance abuse programs, there were some parts that just were beyond the pale. I certainly disagree with their support for the Southern Poverty Law Center which, to be frank, exists primarily to keep founder Morris Dees living in the style to which he has become accustomed.

However, the really egregious part of the editorial was this:

And we should be talking about how to shape gun-control measures to limit access to weapons and ammunition for people not sane enough or civil enough to possess them.

The intent of the Second Amendment has been interpreted historically as a right to self-protection. It has been proved, of late, to be a license to kill innocents – and as many as possible.

You have to wonder how they would react if this was applied to the First Amendment rights of freedom of speech and freedom of the press. There are plenty of journalists who’s sanity I’ve questioned and who are barely civil. The famous journalist H. L. Menchen comes to mind with regard to civility. Moreover, for many journalists, freedom of speech and of the press has become a license to publish stories with their own slant and, in all too many cases, knowingly based on lies.

I believe in all the Bill of Rights including the First Amendment. I just wish those in the media felt the same way towards the Second Amendment as I do towards the First Amendment.

H/T Josh Horwitz who approvingly pointed out this editorial.

Uncategorized

Concealed Carry, the First Amendment, and an Iowa Sheriff

July 9, 2010 by 1 Comment

U. S. District Court Judge Mark Bennett ordered Osceola County, Iowa Sheriff Douglas Weber to issue a concealed carry permit to Paul Dorr because the court found that Sheriff Weber had infringed Mr. Dorr’s First Amendment rights. Judge Bennett did not stop there. He ordered Sheriff Weber to take a college-level course involving the First Amendment.

Judge Bennett was quite colorful in concluding the Sheriff Weber had violated Mr. Dorr’s rights:

The court finds a tsunami, a maelstrom, an avalanche, of direct, uncontroverted evidence in Sheriff Weber’s own testimony to conclude beyond all doubt that he unquestionably violated the First Amendment rights of at least Paul Dorr.

Paul Dorr is a political activist who has been active in both the pro-life movement and the movement to lower government expenses. He had previously had an Iowa “nonprofessional permit to carry a weapon” (the equivalent of a concealed carry permit in Iowa) from the late 1990s until 2006. Thought he thought Mr. Dorr “weird”, Sheriff Weber had approved his permit in 2005 and 2006.

In 2007, however, Sheriff Weber denied Mr. Dorr’s permit writing on the application “Concern from Public. Don’t trust him.” The sheriff thought Mr. Dorr was “weird” and had heard many comments from the general public saying essentially the same thing. He also told Mr. Dorr that he wouldn’t approve any further permits for him.

What had changed in 2007 was that Mr. Dorr was engaged by the Osceola County Taxpayers Association (OCTA) to provide consulting services which included investigating government expenditures, writing and distributing leaflets, and writing letters to the editor. In particular, the OCTA was concerned with the expenditures of the public safety commission and the county attorney’s office. They felt the size of the expenditures were out of line for a county of the size of Osceola and one of the agencies they were concerned about was the Sheriff’s Office.

Judge Bennett said, in his opinion, that:

Giving Sheriff Weber more deference than is due his elected status, the court finds that Sheriff Weber denied Paul’s application for a concealed weapons permit not because of the content of his First Amendment activity but because it was effective and agitated many members of the local community. Had Paul passed out flyers at 2:00 a.m. in a public park where no one was there to receive them, used a bullhorn deep in the woods where no one could hear him advocate his sometimes unorthodox views, or written letters to the editor in the Washington Post where few, if any, residents of Osceola County would read them, then Sheriff Weber would have granted Paul the permit. Paul was denied a permit precisely because Sheriff Weber believed that his free speech rights offended the majority of voters in Osceola County.

Because of this, the court “having found Paul (Dorr) proved a claim of First Amendment retaliation, will order Sheriff Weber to reconsider, and approve, Paul’s application for a concealed weapons permit.” Mr. Dorr’s son Alexander was also a party to the suit but is only 20 years old. Given Alexander’s age, the court found Sheriff Weber was within his discretion to deny him a permit.

In my opinion, here is where it gets really interesting. Districts Courts have substantial leeway to order remedial training to ensure that such violations don’t take place again.

Sheriff Weber’s dramatic and stunning failure to appreciate, and to protect and defend, Paul’s basic First Amendment rights, compels remedial relief.

The court provides Sheriff Weber with the following guidelines concerning the class
that he must complete. First, the class must provide college level instruction on the United States Constitution, including—at least in part—a discussion of the First Amendment. The class may be taken online. Second, Sheriff Weber must obtain approval from the court before participating in the class. Approval must be obtained by filing, with the Clerk of Court, a motion for approval of the proposed class, which must contain a description of the class and contact information for the court to further inquire, if necessary, into the substance of the class. Third, upon completion of the class, Sheriff Weber must file an affidavit with the Clerk of Court stating that he has successfully completed the class. Sheriff Weber shall attach his transcript or other proof of completion to the affidavit—Sheriff Weber must obtain a passing grade or obtain an otherwise satisfactory assessment of his participation in the class.

According to the Sioux City Journal,

Dorr said Wednesday that he was pleased “justice is served. I get my permit back and the sheriff is being sent back to school. The harm done by Sheriff Weber against the 6th and 9th commandments has been made right.”

I have posted the entire opinion in Scribd and it makes for interesting reading.

Dorr Et Al v. Weber Opinion