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.
The change of leadership at Defense Distributed and Ghost Gunner has received attention across the spectrum. You have stories by the NY Times, Fox News, NPR, and the Austin Statesman. You have stories by Recoil, Ammoland, and TTAG. The story was also covered by tech industry publications like Ars Technica and Wired.
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
Tribe’s argument in the Everytown amicus brief is that code is not protected because it isn’t “expressive” and because its purposes are the “widespread violations of federal and state law”.
Sorry but just because you are the Carl M. Loeb University Professor and Professor of Constitutional Law at Harvard Law School doesn’t mean you are right.
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.
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.
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.
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.
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