Threat Of Prosecution?

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.

Ben Franklin Was Correct

“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.

Free Speech And Banned Books

There is a long history of banning books both here in the United States and abroad. Books that come to mind are D. H. Lawerence’s Lady Chatterley’s Lover, Mark Twain’s Huckleberry Finn, and a whole host of others. In more recent times, the Supreme Court has rejected efforts to ban books just because someone didn’t like it. See Island Trees School District v. Pico (1982)

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.

As I’ve written before, the attorneys general of 21 states are now suing in Federal court in Washington State to prohibit Defense Distributed from sharing the code. Judge Robert Lasnik granted them a temporary restraining order. However, that order only applies to the Trump Administration, Defense Distributed, the Second Amendment Foundation, and Conn Williamson. As you should know by now, a coalition of four California-based gun rights groups set up www.codeisfreespeech.com and have published the code for the Liberator and other firearms on the Internet. They have had hundreds of thousands of downloads since the site went live despite the efforts of Amazon Web Services and Facebook.

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.

As Sean Sorrentino notes on Facebook, this book leaves the anti-civil rights attorneys general two arguments:

1. “Banning digital code files that can be used to manufacture and object is fundamentally different than banning a physical book that holds the same exact information.”

or

2. “We must also ban this book.”

Even anti-gun judges are not going to look too favorably upon either argument and the US Supreme Court certainly will not.

So go buy the book!

Maybe I Missed Something – Aren’t Newspapers Supposed To Support The First Amendment?

When I grew up in the 60s and 70s in Greensboro, North Carolina, our local newspaper, the Greensboro Daily News, supported free speech. It had editorialized against the Speaker Ban Law which banned anyone with Communist Party connections from speaking on a state university campus. It featured great editorial writers like Jonathan Yardley and Edwin Yoder who went on to win the Pulitzer Prize later in their careers. The editor was Bill Snider who would get crosses burned in his yard for his support of civil rights.

So you can imagine my feeling when I read one of their most recent editorials arguing against free speech in the name of safety. It began:

Imagine a gun you could build in the privacy of your home in much the same way that you assembled model cars and planes as a youth.

A few clicks of a mouse and — voila! — you’re in business.

We have the know-how. We have the technology. And we should have the common sense not to use it.

You know where this is going. The unsigned editorial in the News & Record (combination of the old Daily News and Greesboro Record) was applauding the move by Attorney General Josh Stein (D-NC) to join the lawsuit in Washington State seeking to prevent Defense Distributed from publishing its files of code for 3-D printing and CNC machining.

No matter that these have been on the Internet since at least 2013 and thousands of us have copies of those files on our computers. No matter that it is 100% legal to make your own firearm so long as you are not a prohibited person and it is not a fully automatic firearm. Of course, they didn’t tell you that part in the editorial. Nor did they say that it would cheaper and easier to go to Lowe’s for parts and Harbor Freight for tools to make your own more substantial firearm.

As I commented on the story on their website:

When a news organization ostensibly dedicated to a free press AND to free speech editorializes against speech it doesn’t like – and make no mistake computer code is speech – it sets a horrendous precendent. What speech will you next want to subject to prior restraint? Will it be conservative speech by an African-American like Mark Robinson? Or will it be something said by a pro-life teen?

Where does it stop? You don’t have to like what is said and you can argue against the ideas contained in that speech. However, in our somewhat free society it should and must be allowed.

It is a bad precedent for any news organization to argue for censorship of free speech. The Greensboro Daily News and Record editorial staff ought rightly to be ashamed of themselves.

Interesting Tidbit: The Staten Island Connection To The Defense Distributed Case

I stumbled across an interesting connection to Staten Island, NY – the forgotten borough – in the case pitting the the anti-gun attorneys general of Washington and a few other states against SAF and Defense Distributed. Both Judge Robert Lasnik who approved the temporary restraining order and attorney Josh Blackman who is representing Defense Distributed grew up in Staten Island.

Blackman is a graduate of the Staten Island Technical High School which was established in 1988. Judge Lasnik graduated from Port Richmond High and is a member of their Hall of Fall.  This 2011 profile of Lasnik in the LA Times discusses his love of Bob Dylan and how it impacted “his soul” with regard to civil rights while growing up on Staten Island.

I find this Staten Island connection interesting because my mother grew up there, my grandfather was the Tax Assessor for the Borough and County of Richmond, and my cousin Tom still lives in my grandparents’ house. Moreover, a good part of summer and every Christmas from the time I was born in 1957 through about 1980 was spent on Staten Island.

I also find it intriguing that the person who had his soul impacted by the music of Bob Dylan with regard to civil rights is the one who curtails free speech. Conversely, the attorney who grew up there as it became a conservative enclave in a sea of blue is the one fighting for free speech.

Amazon Forces CodeIsFreeSpeech.com Off The Air (Its Back Up!)

From the Firearms Policy Coalition’s Facebook page:

The comment from FPC:

Check out the takedown demand by Amazon Web Services about our http://codeisfreespeech.com/ initiative. We aren’t party or subject to any restraining order. Are tech #oligarchs caving? Democracy dies in darkness — when Amazon and Jeff Bezos censor speech.

This is what you get when you go to CodeIsFreeSpeech.com:

Please bear in mind that the groups behind CodeIsFreeSpeech.com were NOT prevented by court order from publishing this information and that it is available damn near anywhere you want to search on the internet. I guess when it comes down to it free speech is considered a convenience and not a right when it comes to the wants and needs of billionaire oligarchs.

UPDATE: I have an email into Brandon Combs of the Firearms Policy Coalition for more on the story.  The New York Daily News ran a story about the website saying it was put up by a “group of California gun nuts”.  Jennifer Van Laar has more on the story at Redstate.com including comments that FPC et al were moving the files to different servers.

UPDATE II: CodeIsFreeSpeech.com is back online again!

From The Annals Of The Stupid Party

When it comes to protecting the Constitution and the First Amendment right of free speech, I have come to understand that the longer a politician is in Washington, DC the less that they remember their oath of office.

Every US Representative takes the following oath:

I, (state your name), do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion, and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.

While the oath has changed since the first Congress, it has always included a line stating that the elected representative will support the Constitution.

I read yesterday that Rep. Ed Royce (R-CA), chairman of the House Foreign Affairs Committee, had sent a letter to President Trump urging action on “3-D printed guns.” The letter says in part:

As you know, the State Department recently reached an agreement with Defense Distributed that will allow the Texas-based company to publish blueprints for making 3D-printed guns on its website. This settlement requires the government to change export restrictions that have long been in place to prevent this sensitive technical data from getting into the hands of those overseas that would do us harm.


I am very concerned that the distribution of these blueprints could allow terrorists and international criminal organizations to manufacture guns that can’t be detected at current security checkpoints in airports, schools, and public buildings. These weapons will not be tagged by serial numbers, making them challenging to trace. This also could undermine U.S. laws that seek to stop the flow of weapons into war-torn countries, and other places where regimes use violence to retain power.


It is critical that our laws keep pace with technology. We can’t give terrorists or violent criminals an easier path to obtaining deadly weapons. I stand ready to help support your Administration in efforts to bolster our national security.

The hyperbole in this letter is astounding as is the stupidity. The thought that rebels and terrorists in  “war-torn countries” would want a 3-D printed “plastic gun” when they could have a functioning AK-47 or M-16 made in the Khyber Pass is ridiculous. A quick Google search on “M16 blueprints pdf” returns 377,000 hits.  As to detection, if the nudie scan machine at the airport’s TSA checkpoint can detect a slip of paper in my pocket, it would be able to detect a “plastic gun”.

It is at this point I should mention that Royce has decided not to run for re-election to his seat in Congress where he has served since 1993. He is also “A-rated” by the NRA.

Lame duck or not, NRA A-rated or not, Ed Royce took an oath to defend the Constitution against all enemies, foreign and domestic’ and swore that he would bear true faith and allegiance to it. Defending the Constitution includes defending free speech and attempts at prior restraint. Royce for all intents and purposes agrees with trampling on the Constitution when it serves his political interests.

In a just world, Royce would be forced to resign. Within the Beltway, he will be applauded for his “courage” and rewarded with a fat consultancy come January 2019.

Clinton-appointed Judge Ignores Constitution And Issues TRO Against Defense Distributed (Updated)

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.

From the docket entry:

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.

From the ruling:

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.

Declan McCullagh writing at Reason.com notes:

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 widely available on the Internet if not available currently at www.defcad.com.

“You Can’t Stop The Signal, Mal”

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.

11th Circuit Rules Against Florida In “Docs V. Glocks” Case

The 11th Circuit Court of Appeals ruling en banc found that parts of  the State of Florida’s Firearms Owners Privacy Act were unconstitutional restrictions on the freedom of speech. This 10-1 overturned an earlier ruling by a 3-judge panel of the 11th Circuit that had ruled in favor of the act. The case, Wollschlager v. Florida, had been euphemistically called  the “Docs v. Glocks case”. The State of Florida had brought this case to the 11th Circuit on appeal from the US District Court for the District of South Florida.

In reaction to anecdotal evidence that some doctors, particularly pediatricians, were refusing treatment to children whose parents refused to answer questions regarding firearms as well as “interrogating” children regarding firearms outside the presence of their parents, the Florida Legislature passed the act in 2011. The Firearms Owners Privacy Act added provisions to medical privacy concerning firearms ownership and included disciplinary measures for violating this privacy. The provisions at issue were the ones dealing with record keeping, inquiry, anti-discrimination, and anti-harassment.

There were two majority opinions on this case from the court. The first by Judge Adalberto Jose Jordan, an Obama appointee, found that:

Exercising plenary review, see ACLU of Fla., Inc. v. Miami-Dade County
Sch. Bd., 557 F.3d 1177, 1206 (11th Cir. 2009), and applying heightened scrutiny
as articulated in Sorrell v. IMS Health, Inc., 564 U.S. 552, 563–67, 571–72 (2011),
we agree with the district court that FOPA’s content-based restrictions—the
record-keeping, inquiry, and anti-harassment provisions—violate the First
Amendment as it applies to the states.
See U.S. Const. amend. I (“Congress shall
make no law . . . abridging the freedom of speech[.]”); Stromberg v. California,
283 U.S. 359, 368 (1931) (“[T]he conception of liberty under the due process
clause of the Fourteenth Amendment embraces the right of free speech.”). And
because these three provisions do not survive heightened scrutiny under Sorrell,
we need not address whether strict scrutiny should apply to them. We also
conclude, this time contrary to the district court, that FOPA’s anti-discrimination
provision—as construed to apply to certain conduct by doctors and medical
professionals—is not unconstitutional.
Finally, we concur with the district court’s
assessment that the unconstitutional provisions of FOPA can be severed from the
rest of the Act.

He concluded by remanding the case back to District Court so that their permanent injunction could be amended to reflect the findings of the Court of Appeals.

Judge Stanley Marcus, a Clinton appointee, agreed with the other majority opinion but was rather skeptical that the anti-discrimination section of the law wouldn’t be used to also regulate speech.

I also worry that the discrimination provision appears to be a variant of the
harassment provision. Because the majority opinion strikes down the harassment
provision, my concern is that the state will now use the discrimination provision to
punish harassing conduct. The Act defines neither harassment nor discrimination.
It seems to me that the same speech that constituted harassment could now
constitute “discriminatory harassment”3 and thus be prohibited.

However, I also recognize that the Supreme Court has stated that
anti-discrimination provisions prohibiting discriminatory conduct “do not, as a
general matter, violate the First or Fourteenth Amendments.” See Hurley v. IrishAm.
Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557, 571–72, 115 S. Ct.
2338, 2346 (1995). Based on this guiding principle, and on a narrow reading of
the provision, I would not strike down the discrimination provision. But I remain
skeptical of the government’s motivation behind this Act. And I urge that in all
future cases reviewing content- and viewpoint-based speech regulations we remain
steadfast in our resolve to protect speech and be wary of any law that muzzles
entire categories of speech.

Judge William Pryor, a Bush appointee and presumed finalist for the recent Supreme Court vacancy, also wrote a concurring opinion. He argued that both the First and Second Amendments were important. However, in the course of protecting one right, another right should not be slighted.

We should not be swayed by the argument that the First Amendment may be
curtailed when other constitutional rights need “protection.” In this context,
“protection” is a misnomer. The Constitution protects individual rights from
government infringement, but freedom thrives on private persuasion.
That the
government may not establish a religion, U.S. Const. Amend. I., or ban handguns,
U.S. Const. Amend. II, does not suggest that private individuals may not start a
church or give away their guns. The Second Amendment is not infringed when
private actors argue that guns are dangerous any more than when private actors
support the positions of the National Rifle Association. The “theory of our
Constitution” is that “the best test of truth is the power of the thought to get itself
accepted in the competition of the market.” Abrams v. United States, 250 U.S. 616,
630 (1919) (Holmes, J., dissenting). The Florida Legislature overstepped the
boundaries of the First Amendment when it determined that the proper remedy for
speech it considered “evil” was “enforced silence,” as opposed to “more speech.”
Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring).

Finally, Judge  Gerald Tjoflat, a Ford appointee, wrote a blistering dissent which called into question the appropriate level of scrutiny applied by the majority opinions. Unlike the rest of his colleagues, he found that FOPA was narrowly tailored and would have passed even strict scrutiny. He concluded:

The majority and I agree that Florida possesses a substantial interest in
protecting both Floridians’ reasonable expectation of privacy during medical
treatment and the full exercise of their Second Amendment rights. If that is so,
then it is hard to imagine a law more precisely tailored to advance those substantial
state interests than the one presently before us. The Act does not categorically
restrict the speech of medical professionals on the subject of firearms. Instead, it
simply requires an individualized, good faith judgment of the necessity of speech
related to firearm ownership to provide competent medical care to a patient. The
individualized assessment of medical appropriateness required under the Act does
not foreclose the ability of a physician to question a patient, but instead carefully
weighs that right against Florida’s undoubtedly substantial interest in regulating
the medical profession to protect the constitutional rights of all Floridians. In my
judgment, the Act “narrowly protects patients in a focused manner in order to
advance the State’s compelling interest in protecting the Second Amendment’s
guarantee to keep and bear arms and patients’ privacy rights in their medical
records, exactly the sort of tailoring [even] strict scrutiny requires.” Id. at 1201.

Therefore, I respectfully dissent from my colleagues’ judgment that the First
Amendment requires us to declare Florida’s well-considered legislative judgment
unconstitutional.