Defense Distributed v. United States Department of State

Case: 15-50759 Document: 00513686006 Page: 1 Date Filed: 09/20/2016

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

September 20, 2016

No. 15-50759

Lyle W. Cayce

Clerk

DEFENSE DISTRIBUTED; SECOND AMENDMENT FOUNDATION,

INCORPORATED,

Plaintiffs - Appellants

v.

UNITED STATES DEPARTMENT OF STATE; JOHN F. KERRY, In His

Official Capacity as the Secretary of the Department of State;

DIRECTORATE OF DEFENSE TRADE CONTROLS, Department of State

Bureau of Political Military Affairs; KENNETH B. HANDELMAN,

Individually and in His Official Capacity as the Deputy Assistant Secretary

of State for Defense Trade Controls in the Bureau of Political-Military

Affairs; C. EDWARD PEARTREE, Individually and in His Official Capacity

as the Director of the Office of Defense Trade Controls Policy Division;

SARAH J. HEIDEMA, Individually and in Her Official Capacity as the

Division Chief, Regulatory and Multilateral Affairs, Office of Defense Trade

Controls Policy; GLENN SMITH, Individually and in His Official Capacity as

the Senior Advisor, Office of Defense Trade Controls,

Defendants - Appellees

Appeal from the United States District Court

for the Western District of Texas

Before DAVIS, JONES, and GRAVES, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Plaintiffs-Appellants Defense Distributed and Second Amendment

Foundation, Inc. have sued Defendants-Appellees, the United States

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No. 15-50759

Department of State, the Secretary of State, the DDTC, and various agency

employees (collectively, the “State Department”), seeking to enjoin

enforcement of certain laws governing the export of unclassified technical data

relating to prohibited munitions. Because the district court concluded that the

public interest in national security outweighs Plaintiffs-Appellants’ interest in

protecting their constitutional rights, it denied a preliminary injunction, and

they timely appealed. We conclude the district court did not abuse its discretion

and therefore affirm.

I. Background

Defense Distributed is a nonprofit organization operated, in its own

words, “for the purpose of promoting popular access to arms guaranteed by the

United States Constitution” by “facilitating global access to, and the

collaborative production of, information and knowledge related to the 3D

printing of arms; and by publishing and distributing such information and

knowledge on the Internet at no cost to the public.” Second Amendment

Foundation, Inc. is a nonprofit devoted more generally to promoting Second

Amendment rights.

Defense Distributed furthers its goals by creating computer files used to

create weapons and weapon parts, including lower receivers for AR-15 rifles. 1

The lower receiver is the part of the firearm to which the other parts are

attached. It is the only part of the rifle that is legally considered a firearm

under federal law, and it ordinarily contains the serial number, which in part

allows law enforcement to trace the weapon. Because the other gun parts, such

as the barrel and magazine, are not legally considered firearms, they are not

1 The district court capably summarized the facts in its memorandum opinion and

order. See Def. Distributed v. U.S. Dep’t of State, 121 F. Supp. 3d 680, 686-88 (W.D. Tex.

2015). The facts set out in this opinion come largely from the district court’s opinion and the

parties’ briefs.

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regulated as such. Consequently, the purchase of a lower receiver is restricted

and may require a background check or registration, while the other parts

ordinarily may be purchased anonymously.

The law provides a loophole, however: anyone may make his or her own

unserialized, untraceable lower receiver for personal use, though it is illegal to

transfer such weapons in any way. Typically, this involves starting with an

“80% lower receiver,” which is simply an unfinished piece of metal that looks

quite a bit like a lower receiver but is not legally considered one and may

therefore be bought and sold freely. It requires additional milling and other

work to turn into a functional lower receiver. Typically this would involve using

jigs (milling patterns), a drill press, other tools, and some degree of machining

expertise to carefully complete the lower receiver. The result, combined with

the other, unregulated gun parts, is an unserialized, untraceable rifle.

Defense Distributed’s innovation was to create computer files to allow

people to easily produce their own weapons and weapon parts using relatively

affordable and readily available equipment. Defense Distributed has explained

the technologies as follows:

Three-dimensional (“3D”) printing technology allows a computer to

“print” a physical object (as opposed to a two-dimensional image

on paper). Today, 3D printers are sold at stores such as Home

Depot and Best Buy, and the instructions for printing everything

from jewelry to toys to car parts are shared and exchanged freely

online at sites like GrabCAD.com and Thingiverse.com. Computer

numeric control (“CNC”) milling, an older industrial technology,

involves a computer directing the operation of a drill upon an

object. 3D printing is “additive;” using raw materials, the printer

constructs a new object. CNC milling is “subtractive,” carving

something (more) useful from an existing object.

Both technologies require some instruction set or “recipe”—in the

case of 3D printers, computer aided design (“CAD”) files, typically

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in .stl format; for CNC machines, text files setting out coordinates

and functions to direct a drill. 2

Defense Distributed’s files allow virtually anyone with access to a 3D

printer to produce, among other things, Defense Distributed’s single-shot

plastic pistol called the Liberator and a fully functional plastic AR-15 lower

receiver. In addition to 3D printing files, Defense Distributed also sells its own

desktop CNC mill marketed as the Ghost Gunner, as well as metal 80% lower

receivers. With CNC milling files supplied by Defense Distributed, Ghost

Gunner operators are able to produce fully functional, unserialized, and

untraceable metal AR-15 lower receivers in a largely automated fashion.

Everything discussed above is legal for United States citizens and will

remain legal for United States citizens regardless of the outcome of this case.

This case concerns Defense Distributed’s desire to share all of its 3D printing

and CNC milling files online, available without cost to anyone located

anywhere in the world, free of regulatory restrictions.

Beginning in 2012, Defense Distributed posted online, for free download

by anyone in the world, a number of computer files, including those for the

Liberator pistol (the “Published Files”). On May 8, 2013, the State Department

sent a letter to Defense Distributed requesting that it remove the files from the

internet on the ground that sharing them in that manner violates certain laws.

The district court summarized the relevant statutory and regulatory

framework as follows:

Under the Arms Export Control Act (“AECA”), “the President is

authorized to control the import and the export of defense articles

and defense services” and to “promulgate regulations for the

import and export of such articles and services.” 22 U.S.C. §

2778(a)(1). The AECA imposes both civil and criminal penalties for

violation of its provisions and implementing regulations, including

2 Plaintiffs-Appellants’ Original Brief on Appeal.

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monetary fines and imprisonment. Id. § 2278(c) & (e). The

President has delegated his authority to promulgate implementing

regulations to the Secretary of State. Those regulations, the

International Traffic in Arms Regulation (“ITAR”), are in turn

administered by the DDTC [Directorate of Defense Trade

Controls] and its employees. 22 C.F.R. 120.1(a).

The AECA directs that the “defense articles” designated under its

terms constitute the United States “Munitions List.” 22 U.S.C. §

2778(a)(1). The Munitions List “is not a compendium of specific

controlled items,” rather it is a “series of categories describing the

kinds of items” qualifying as “defense articles.” United States v.

Zhen Zhou Wu, 711 F.3d 1, 12 (1st Cir.) cert. denied sub nom.

Yufeng Wei v. United States, –––U.S. ––––, 134 S. Ct. 365, 187 L.

Ed. 2d 160 (2013). Put another way, the Munitions List contains

“attributes rather than names.” United States v. Pulungan, 569

F.3d 326, 328 (7th Cir. 2009) (explaining “an effort to enumerate

each item would be futile,” as market is constantly changing). The

term “defense articles” also specifically includes “technical data

recorded or stored in any physical form, models, mockups or other

items that reveal technical data directly relating to items

designated in” the Munitions List. 22 C.F.R. § 120.6

A party unsure about whether a particular item is a “defense

article” covered by the Munitions List may file a “commodity

jurisdiction” request with the DDTC. See 22 C.F.R. § 120.4

(describing process). The regulations state the DDTC “will provide

a preliminary response within 10 working days of receipt of a

complete request for commodity jurisdiction.” Id. § 120.4(e). If a

final determination is not provided after 45 days, “the applicant

may request in writing to the Director, Office of Defense Trade

Controls Policy that this determination be given expedited

processing.” Id. 3

In short, the State Department contended: (1) the Published Files were

potentially related to ITAR-controlled “technical data” relating to items on the

USML; (2) posting ITAR-controlled files on the internet for foreign nationals

3 See Def. Distributed v. U.S. Dep’t of State, 121 F. Supp. 3d 680, 687-88 (W.D. Tex.

2015).

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to download constitutes “export”; and (3) Defense Distributed therefore must

obtain prior approval from the State Department before “exporting” those files.

Defense Distributed complied with the State Department’s request by taking

down the Published Files and seeking commodity jurisdiction requests for

them. It did eventually obtain approval to post some of the non-regulated files,

but all of the Published Files continue to be shared online on third party sites

like The Pirate Bay.

Since then, Defense Distributed has not posted any new files online.

Instead, it is seeking prior approval from the State Department and/or DDTC

before doing so, and it has not obtained such approval. The new files Defense

Distributed seeks to share online include the CNC milling files required to

produce an AR-15 lower receiver with the Ghost Gunner and various other 3D

printed weapons or weapon parts.

District Court Proceedings

In the meantime, Defense Distributed and Second Amendment

Foundation, Inc., sued the State Department, seeking to enjoin them from

enforcing the regulations discussed above. Plaintiffs-Appellants argue that the

State Department’s interpretation of the AECA, through the ITAR regulations,

constitutes an unconstitutional prior restraint on protected First Amendment

speech, to wit, the 3D printing and CNC milling files they seek to place online. 4

They also claim violations of the Second and Fifth Amendments. Plaintiffs-

Appellants’ challenges to the regulatory scheme are both facial and as applied,

and they ultimately seek a declaration that no prepublication approval is

4 The State Department does not restrict the export of the Ghost Gunner machine

itself or the user manual, only the specific CNC milling files used to produce the AR-15 lower

receivers with it, as well as all 3D printing files used to produce prohibited weapons and

weapon parts.

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needed for privately generated unclassified information, whether or not that

data may constitute “technical data” relating to items on the USML.

Plaintiffs-Appellants sought a preliminary injunction against the State

Department, essentially seeking to have the district court suspend

enforcement of ITAR’s prepublication approval requirement pending final

resolution of this case. The district court denied the preliminary injunction,

and Plaintiffs-Appellants timely filed this appeal. We review the denial of a

preliminary injunction for abuse of discretion, but we review any questions of

law de novo. 5

To obtain a preliminary injunction, the applicant must show (1) a

substantial likelihood that he will prevail on the merits, (2) a

substantial threat that he will suffer irreparable injury if the

injunction is not granted, (3) that his threatened injury outweighs

the threatened harm to the party whom he seeks to enjoin, and (4)

that granting the preliminary injunction will not disserve the

public interest. “We have cautioned repeatedly that a preliminary

injunction is an extraordinary remedy which should not be granted

unless the party seeking it has ‘clearly carried the burden of

persuasion’ on all four requirements.” 6

We have long held that satisfying one requirement does not necessarily

affect the analysis of the other requirements. In Southern Monorail Co. v.

Robbins & Myers, Inc., 666 F.2d 185 (5th Cir. Unit B 1982), for example, the

district court had denied a preliminary injunction solely because it found that

the movant, Robbins & Myers, failed to satisfy the balance of harm

requirement. On appeal, Robbins & Myers argued that it had clearly shown a

substantial likelihood of success on the merits, and satisfying that requirement

should give rise to a presumption of irreparable harm and a presumption that

the balance of harm tipped in its favor. We disagreed:

5 PCI Transp., Inc. v. Fort Worth & W. R. Co., 418 F.3d 535, 545 (5th Cir. 2005)

(footnotes omitted)

6 Id.

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Because we dispose of this case on the balance of harm question,

we need not decide and we express no views upon whether a

presumption of irreparable injury as a matter of law is appropriate

once a party demonstrates a substantial likelihood of success on

the merits of an infringement claim. In other words, even

assuming arguendo that Robbins & Myers has shown a substantial

likelihood of success on the merits of its infringement claim and

that irreparable injury should be presumed from such a showing

(two issues not addressed by the district court in this case), we still

uphold the district court’s decision, which rested solely on the

balance of harm factor. We agree that Robbins & Myers has failed

to carry its burden of showing that the threatened harm to it from

the advertisement outweighs the harm to Southern Monorail from

the intercept. In addition, we expressly reject Robbins & Myers’

suggestion that we adopt a rule that the balance of harm factor

should be presumed in the movant's favor from a demonstration of

a substantial likelihood of success on the merits of an infringement

claim. Such a presumption of the balance of harm factor would not

comport with the discretionary and equitable nature of the

preliminary injunction in general and of the balance of harm factor

in particular. See Ideal Industries, Inc. v. Gardner Bender, Inc.,

612 F.2d 1018, 1026 (7th Cir. 1979), cert. denied, 447 U.S. 924, 100

S. Ct. 3016, 65 L. Ed. 2d 1116 (1980) (district court obligated to

weigh relative hardship to parties in relation to decision to grant

or deny preliminary injunction, even when irreparable injury

shown). 7

The district court concluded that the preliminary injunction should be

denied because Plaintiffs-Appellants failed to satisfy the balance of harm and

public interest requirements, which do not concern the merits. (Assuming

without deciding that Plaintiffs-Appellants have suffered the loss of First and

Second Amendment freedoms, they have satisfied the irreparable harm

requirement because any such loss, however intangible or limited in time,

7 Id. at 187-88.

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constitutes irreparable injury. 8) In extensive dicta comprising nearly two-

thirds of its memorandum opinion, the district court also concluded that

Plaintiffs-Appellants failed to show a likelihood of success on the merits.

Plaintiffs-Appellants timely appealed, asserting essentially the same

arguments on appeal. Plaintiffs-Appellants continue to bear the burden of

persuasion on appeal.

Analysis

Because the district court held that Plaintiffs-Appellants only satisfied

the irreparable harm requirement, they may obtain relief on appeal only if they

show that the district court abused its discretion on all three of the other

requirements. The district court denied the preliminary injunction based on its

finding that Plaintiffs-Appellants failed to meet the two non-merits

requirements by showing that (a) the threatened injury to them outweighs the

threatened harm to the State Department, and (b) granting the preliminary

injunction will not disserve the public interest. The court only addressed the

likelihood of success on the merits as an additional reason for denying the

injunction. Because we conclude the district court did not abuse its discretion

on its non-merits findings, we decline to address the merits requirement.

The crux of the district court’s decision is essentially its finding that the

government’s exceptionally strong interest in national defense and national

security outweighs Plaintiffs-Appellants’ very strong constitutional rights

under these circumstances. Before the district court, as on appeal, Plaintiffs-

Appellants failed to give any weight to the public interest in national defense

and national security, as the district court noted:

8 See Def. Distributed, 121 F. Supp. 3d at 689 (citing Elrod v. Burns, 427 U.S. 347,

373, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976); Palmer v. Waxahachie Indep. Sch. Dist., 579 F.3d

502, 506 (5th Cir. 2009); Ezell v. City of Chicago, 651 F.3d 684, 699 (7th Cir. 2011)).

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Plaintiffs rather summarily assert the balance of interests tilts in

their favor because “[I]t is always in the public interest to prevent

the violation of a party’s constitutional rights.” Awad v. Ziriax, 670

F.3d 1111, 1132 (10th Cir. 2012); see also Jackson Women’s Health

Org. v. Currier, 760 F.3d 448, 458 n. 9 (5th Cir. 2014) (district court

did not abuse its discretion in finding injunction would not disserve

public interest because it will prevent constitutional

deprivations). 9

Ordinarily, of course, the protection of constitutional rights would be the

highest public interest at issue in a case. That is not necessarily true here,

however, because the State Department has asserted a very strong public

interest in national defense and national security. Indeed, the State

Department’s stated interest in preventing foreign nationals—including all

manner of enemies of this country—from obtaining technical data on how to

produce weapons and weapon parts is not merely tangentially related to

national defense and national security; it lies squarely within that interest.

In the State Department’s interpretation, its ITAR regulations directly

flow from the AECA and are the only thing preventing Defense Distributed

from “exporting” to foreign nationals (by posting online) prohibited technical

data pertaining to items on the USML. Plaintiffs-Appellants disagree with the

State Department’s interpretation, but that question goes to the merits.

Because Plaintiffs-Appellants’ interest in their constitutional rights and

the State Department’s interest in national defense and national security are

both public interests, the district court observed that “[i]n this case, the inquiry

[on these two requirements] essentially collapses.” 10 It reasoned:

While Plaintiffs’ assertion of a public interest in protection of

constitutional rights is well-taken, it fails to consider the public’s

keen interest in restricting the export of defense articles. See

Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24–25, 129 S.

9 Id. at 689.

10 Id.

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Ct. 365, 172 L. Ed. 2d 249 (2008) (discussing failure of district

court to consider injunction’s adverse impact on public interest in

national defense); Am. Civil Liberties Union v. Clapper, 785 F.3d

787, 826 (2nd Cir. 2015) (characterizing maintenance of national

security as “public interest of the highest order”). It also fails to

account for the interest—and authority—of the President and

Congress in matters of foreign policy and export. See Haig v. Agee,

453 U.S. 280, 292, 101 S. Ct. 2766, 69 L. Ed. 2d 640 (1981) (matters

relating to conduct of foreign relations “are so exclusively

entrusted to the political branches of government as to be largely

immune from judicial inquiry or interference”); United States v.

Pink, 315 U.S. 203, 222–23, 62 S. Ct. 552, 86 L. Ed. 796 (1942)

(conduct of foreign relations “is committed by the Constitution to

the political departments of the Federal Government”); Spectrum

Stores, Inc. v. Citgo Petroleum Corp., 632 F.3d 938, 950 (5th Cir.

2011) (matters implicating foreign relations and military affairs

generally beyond authority of court’s adjudicative powers).

As to Plaintiff’s second contention, that an injunction would not

bar Defendants from controlling the export of classified

information, it is significant that Plaintiffs maintain the posting of

files on the Internet for free download does not constitute “export”

for the purposes of the AECA and ITAR. But Defendants clearly

believe to the contrary. Thus, Plaintiffs’ contention that the grant

of an injunction permitting them to post files that Defendants

contend are governed by the AECA and ITAR would not bar

Defendants from controlling “export” of such materials stand in

sharp [contrast] to Defendants’ assertion of the public interest. The

Court thus does not believe Plaintiffs have met their burden as to

the final two prongs necessary for granting Plaintiffs a preliminary

injunction. Nonetheless, in an abundance of caution, the Court will

turn to the core of Plaintiffs’ motion for a preliminary injunction,

whether they have shown a likelihood of success on their

claims[.] 11

Plaintiffs-Appellants suggest the district court disregarded their

paramount interest in protecting their constitutional rights. That is not so. The

district court’s decision was based not on discounting Plaintiffs-Appellants’

11 Id. at 689-90.

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interest but rather on finding that the public interest in national defense and

national security is stronger here, and the harm to the government is greater

than the harm to Plaintiffs-Appellants. We cannot say the district court abused

its discretion on these facts.

Because both public interests asserted here are strong, we find it most

helpful to focus on the balance of harm requirement, which looks to the relative

harm to both parties if the injunction is granted or denied. If we affirm the

district court’s denial, but Plaintiffs-Appellants eventually prove they are

entitled to a permanent injunction, their constitutional rights will have been

violated in the meantime, but only temporarily. Plaintiffs-Appellants argue

that this result is absurd because the Published Files are already available

through third party websites such as the Pirate Bay, but granting the

preliminary injunction sought by Plaintiffs-Appellants would allow them to

share online not only the Published Files but also any new, previously

unpublished files. That leads us to the other side of the balance of harm

inquiry.

If we reverse the district court’s denial and instead grant the preliminary

injunction, Plaintiffs-Appellants would legally be permitted to post on the

internet as many 3D printing and CNC milling files as they wish, including

the Ghost Gunner CNC milling files for producing AR-15 lower receivers and

additional 3D-printed weapons and weapon parts. Even if Plaintiffs-

Appellants eventually fail to obtain a permanent injunction, the files posted in

the interim would remain online essentially forever, hosted by foreign websites

such as the Pirate Bay and freely available worldwide. That is not a far-fetched

hypothetical: the initial Published Files are still available on such sites, and

Plaintiffs-Appellants have indicated they will share additional, previously

unreleased files as soon as they are permitted to do so. Because those files

would never go away, a preliminary injunction would function, in effect, as a

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permanent injunction as to all files released in the interim. Thus, the national

defense and national security interest would be harmed forever. The fact that

national security might be permanently harmed while Plaintiffs-Appellants’

constitutional rights might be temporarily harmed strongly supports our

conclusion that the district court did not abuse its discretion in weighing the

balance in favor of national defense and national security.

In sum, we conclude that the district court did not abuse its discretion in

denying Plaintiffs-Appellants’ preliminary injunction based on their failure to

carry their burden of persuasion on two of the three non-merits requirements

for preliminary injunctive relief, namely the balance of harm and the public

interest. We therefore affirm the district court’s denial and decline to reach the

question of whether Plaintiffs-Appellants have demonstrated a substantial

likelihood of success on the merits. 12

12 The dissent disagrees with this opinion’s conclusion that the balance of harm and

public interest factors favor the State Department such that Plaintiffs-Appellants’ likelihood

of success on the merits could not change the outcome. The dissent argues that we “should

have held that the domestic internet publication” of the technical data at issue presents no

“immediate danger to national security, especially in light of the fact that many of these files

are now widely available over the Internet and that the world is awash with small arms.”

We note the following: (1) If Plaintiffs-Appellants’ publication on the Internet were

truly domestic, i.e., limited to United States citizens, there is no question that it would be

legal. The question presented in this case is whether Plaintiffs-Appellants may place such

files on the Internet for unrestricted worldwide download. (2) This case does not concern only

the files that Plaintiffs-Appellants previously made available online. Plaintiffs-Appellants

have indicated their intent to make many more files available for download as soon as they

are legally allowed to do so. Thus, the bulk of the potential harm has not yet been done but

could be if Plaintiffs-Appellants obtain a preliminary injunction that is later determined to

have been erroneously granted. (3) The world may be “awash with small arms,” but it is not

yet awash with the ability to make untraceable firearms anywhere with virtually no technical

skill. For these reasons and the ones we set out above, we remain convinced that the potential

permanent harm to the State Department’s strong national security interest outweighs the

potential temporary harm to Plaintiffs-Appellants’ strong First Amendment interest.

As to the dissent’s extensive discussion of Plaintiffs-Appellants’ likelihood of success

on the merits of the First Amendment issue, we take no position. Even a First Amendment

violation does not necessarily trump the government’s interest in national defense. We simply

hold that Plaintiffs-Appellants have not carried their burden on two of the four requirements

for a preliminary injunction: the balance of harm and the public interest.

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We are mindful of the fact that the parties and the amici curiae in this

case focused on the merits, and understandably so. This case presents a

number of novel legal questions, including whether the 3D printing and/or

CNC milling files at issue here may constitute protected speech under the First

Amendment, the level of scrutiny applicable to the statutory and regulatory

scheme here, whether posting files online for unrestricted download may

constitute “export,” and whether the ITAR regulations establish an

impermissible prior restraint scheme. These are difficult questions, and we

take no position on the ultimate outcome other than to agree with the district

court that it is not yet time to address the merits.

On remand, the district court eventually will have to address the merits,

and it will be able to do so with the benefit of a more fully developed record.

The amicus briefs submitted in this case were very helpful and almost all

supported Plaintiffs-Appellants’ general position. Given the importance of the

issues presented, we may only hope that amici continue to provide input into

the broader implications of this dispute.

Conclusion

For the reasons set out above, we conclude that the district court did not

abuse its discretion by denying the preliminary injunction on the non-merits

requirements. AFFIRMED.

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JONES, Circuit Judge, dissenting:

This case poses starkly the question of the national government’s power

to impose a prior restraint on the publication of lawful, unclassified, not-

otherwise-restricted technical data to the Internet under the guise of

regulating the “export” of “defense articles.” I dissent from this court’s failure

to treat the issues raised before us with the seriousness that direct

abridgements of free speech demand.

I.

From late 2012 to early 2013, plaintiff Defense Distributed posted on the

Internet, free of charge, technical information including computer assisted

design files (CAD files) about gun-related items including a trigger guard, two

receivers, an ArmaLite Rifle-15 magazine, 1 and a handgun named “The

Liberator.” None of the published information was illegal, classified for

national security purposes, or subject to contractual or other distribution

restrictions. In these respects the information was no different from technical

data available through multiple Internet sources from widely diverse

publishers. From scientific discussions to popular mechanical publications to

personal blog sites, information about lethal devices of all sorts, or

modifications to commercially manufactured firearms and explosives, is

readily available on the Internet.

What distinguished Defense Distributed’s information at that time,

however, was its computer files designed for 3D printer technology that could

be used to “print” parts and manufacture, with the proper equipment and

know-how, a largely plastic single-shot handgun. The Liberator technology

1 The ArmaLite Rifle, design 15 is rifle platform commonly abbreviated AR-15, a

registered trademark of Colt’s Inc. AR-15, Registration No. 0,825,581.

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drew considerable press attention 2 and the relevant files were downloaded

“hundreds of thousands of times.” In May 2013, Defense Distributed received

a warning letter from the U.S. State Department stating in pertinent part:

DDTC/END is conducting a review of technical data made publicly

available by Defense Distributed through its 3D printing website,

DEFCAD.org, the majority of which appear to be related to items

in Category I of the USML. Defense Distributed 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.

Pursuant to §127.1 of the ITAR, it is unlawful to export any

defense article or technical data for which a license or written

approval is required without first obtaining the required

authorization from the DDTC. Please note that disclosing

(including oral or visual disclosure) or transferring technical data

to a foreign person, whether in the United States or abroad, is

considered an export under §120.17 of the ITAR.

The letter then advised Defense Distributed that it must “remove [its

information] from public access” immediately, pending its prompt request for

and receipt of approval from DDTC.

In a nearly forty-year history of munitions “export” controls, the State

Department had never sought enforcement against the posting of any kind of

files on the Internet. Because violations of the cited regulations carry severe

civil and criminal penalties, 3 Defense Distributed had no practical choice but

to remove the information and seek approval to publish from DDTC. It took

2 According to Defense Distributed, the Liberator files were covered, inter alia, by

Forbes, CNN, NBC News, and the Wall Street Journal.

3 Fines may exceed a million dollars and imprisonment, for violations premised on

specific intent to violate, up to twenty years. 28 U.S.C. § 2778(c); United States v.

Covarrubias, 94 F.3d 172 (5th Cir. 1996).

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the government entities two years to refuse to exempt most of the files from

the licensing regime.

Defense Distributed filed suit in federal court to vindicate, inter alia, its

First Amendment right to publish without prior restraint 4 and sought the

customary relief of a temporary injunction to renew publication. This appeal

stems from the district court’s denial of relief. Undoubtedly, the denial of a

temporary injunction in this case will encourage the State Department to

threaten and harass publishers of similar non-classified information. There is

also little certainty that the government will confine its censorship to Internet

publication. Yet my colleagues in the majority seem deaf to this imminent

threat to protected speech. More precisely, they are willing to overlook it with

a rote incantation of national security, an incantation belied by the facts here

and nearly forty years of contrary Executive Branch pronouncements.

This preliminary injunction request deserved our utmost care and

attention. Interference with First Amendment rights for any period of time,

even for short periods, constitutes irreparable injury. Elrod v. Burns,

427 U.S. 347, 373, 96 S. Ct. 2673, 2690 (1976) (citing New York Times Co. v.

United States, 403 U.S. 713, 91 S. Ct. 2140 (1971)); Opulent Life Church v.

City of Holly Springs, Miss., 697 F.3d 279, 295–97 (5th Cir. 2012). Defense

Distributed has been denied publication rights for over three years. The

district court, moreover, clearly erred in gauging the level of constitutional

protection to which this speech is entitled: intermediate scrutiny is

4 To simplify discussion, I refer to Defense Distributed as the plaintiff, but it is joined

in litigation by the Second Amendment Foundation, and its arguments are adopted and

extended by numerous amici curiae. Believing that the deprivation of a merits opinion is

most critical to Defense Distributed’s First Amendment claim, I do not discuss the plaintiffs’

other non-frivolous claims premised on ultra vires, the Second Amendment and procedural

due process.

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inappropriate for the content-based restriction at issue here. (Why the

majority is unwilling to correct this obvious error for the sake of the lower

court’s getting it right on remand is a mystery).

The district court’s mischaracterization of the standard of scrutiny

fatally affected its approach to the remaining prongs of the test for preliminary

injunctive relief. Without a proper assessment of plaintiff’s likelihood of

success on the merits—arguably the most important of the four factors

necessary to grant a preliminary injunction, Tesfamichael v. Gonzales,

411 F.3d 169, 176 (5th Cir. 2005)—the district court’s balancing of harms went

awry. 5 We should have had a panel discussion about the government’s right

to censor Defense Distributed’s speech.

Since the majority are close to missing in action, and for the benefit of

the district court on remand, I will explain why I conclude that the State

Department’s application of its “export” control regulations to this domestic

Internet posting appears to violate the governing statute, represents an

irrational interpretation of the regulations, and violates the First Amendment

as a content-based regulation and a prior restraint.

5 See Tex. v. Seatrain Int’l, S.A., 518 F.2d 175, 180 (5th Cir. 1975) (“none of the four

prerequisites has a fixed quantitative value. Rather, a sliding scale is utilized, which takes

into account the intensity of each in a given calculus.”). Southern Monorail Co. v. Robbins &

Myers, Inc., 666 F.2d 185 (5th Cir. 1982), is the only case relied upon by the majority for the

proposition that we may dispense with addressing the likelihood of success on the merits if

we conclude that the parties have not satisfied one of the other elements of the test for

granting a preliminary injunction. That case is distinguishable. First, Southern Monorail

was a private action concerning trademark infringement, not a case involving a claim of the

invasion of constitutional rights by the federal government. See id. at 185–86. Second, “the

district court denied the injunction solely on the basis of the third factor, concerning the

balance of harm.” Id. at 186 (emphasis added). In this case, by contrast, the district court

addressed each of the preliminary injunction factors, thus allowing us to consider its

resolution of each factor.

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II.

A. Regulatory Framework

The Arms Export Control Act of 1976 (“AECA”) authorizes the President

to “control the import and the export of defense articles and defense services.”

22 U.S.C. § 2778(a)(1). The President “is authorized to designate those items

which shall be considered as defense articles and defense services . . . and to

promulgate regulations for the import and export of such articles and services.”

Id. “The items so designated shall constitute the United States Munitions

List.” Id. The statute does not define “export,” but “defense items” includes

defense articles, defense services “and related technical data.” 22 U.S.C.

§ 2778(j)(4)(A).

In response to this directive, the State Department promulgated the

International Traffic in Arms Regulations (“ITAR”), which contain the United

States Munitions List (“USML”). 22 C.F.R. § 121.1. The USML enumerates a

vast array of weaponry, ammunition, and military equipment including, for

present purposes, “firearms,” defined as “[n]onautomatic and semi-automatic

firearms to caliber .50 inclusive,” 22 C.F.R. § 121.1, Category I, item (a).

The USML also broadly designates “technical data” relating to firearms

as subject to the ITAR. 22 C.F.R. § 121.1, Category I, item (i). “Technical data”

encompass any information “which is required for the design, development,

production, manufacture, assembly, operation, repair, testing, maintenance or

modification of defense articles including “information in the form of

blueprints, drawings, photographs, plans, instructions or documentation.”

22 C.F.R. § 120.10(a)(1).

Notably excepted from “technical data” is information concerning

general scientific, mathematical, or engineering principles commonly taught

in schools, colleges, and universities, or information in the public domain.”

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22 C.F.R. § 120.10(b). Further, the “public domain” covers “information which

is published and which is generally accessible or available to the public”

through newsstands, bookstores, public libraries, conferences, meetings,

seminars, trade shows, and “fundamental research in science and engineering

at accredited institutions of higher learning in the U.S. where the resulting

information is ordinarily published and shared broadly in the scientific

community.” 22 C.F.R. § 120.11(a). 6

Under the ITAR it is unlawful to “export or attempt to export from the

United States any defense article or technical data” without first obtaining a

license or written approval from the Directorate of Defense Trade Controls

(“DDTC”), a division of the State Department. 22 C.F.R. § 127.1(a)(1). When

Defense Distributed published technical data on the Internet, the State

Department defined “export” broadly, as, inter alia, “[d]isclosing (including

oral or visual disclosure) or transferring technical data to a foreign person,

whether in the United States or abroad.” 22 C.F.R. § 120.17(a)(4). 7

6 This provision only appears to permit dissemination of information already in the

public domain. Indeed, the State Department has explicitly taken the position in this

litigation and in a June 2015 Notice of Proposed Rulemaking that an individual wishing to

place technical data in the public domain must obtain State Department approval. 80 Fed.

Reg. at 31,528. The State Department has proposed, but has not yet adopted, a rule to make

this distinction more explicit. See id.

7 Effective September 1, 2016, however, the State Department has amended that

provision, now defining an export as, “[r]eleasing or otherwise transferring technical data to

a foreign person in the United States.” Id. § 120.17(a)(2); see also International Traffic in

Arms: Revisions to Definition of Export and Related Definitions, 81 Fed. Reg. 35,611, 35,616

(June 3, 2016). Moreover, in June 2015, the State Department issued a Notice of Proposed

Rulemaking, which proposed adding to the term “export” “[m]aking technical data available

via a publicly available network (e.g., the Internet).” This, of course, is the open-ended

definition of “export” urged by the State Department in this litigation. See International

Traffic in Arms: Revisions to Definitions of Defense Services, Technical Data, and Public

Domain, 80 Fed. Reg. 31,525, 31,535 (proposed June 3, 2015). The Notice advised that the

State Department intends to address that definition in a separate rulemaking and for now

allows the “existing ITAR controls [to] remain in place.” 81 Fed. Reg. at 35,613.

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In order to resolve doubts about whether an “export” is covered by ITAR,

parties may request a “commodity jurisdiction” determination from the DDTC,

which will determine each request on a “case-by-case basis,” 22 C.F.R.

§ 120.4(a), taking into account “the form and fit of the article; and [t]he

function and performance capability of the article.” 22 C.F.R. § 120.4 (d)(2)(i)–

(ii).

The commodity jurisdiction process could, in theory, be avoided if the

particular export is exempt from the DDTC process. 22 C.F.R. § 125.4. As

relevant here, “[t]echnical data approved for public release (i.e., unlimited

distribution) by the cognizant U.S. Government department or agency or Office

of Freedom of Information and Security Review” is exempt from the DDTC

approval process. 22 C.F.R. § 125.4(b)(13). Under this rubric, the Defense

Office of Prepublication and Security Review (“DOPSR”), housed in the

Department of Defense’s Defense Technical Information Center, “is

responsible for managing the Department of Defense security review program,

[and] reviewing written materials both for public and controlled release.”

Defense Office of Prepublication and Security Review (DOPSR), EXECUTIVE

SERVS. DIRECTORATE ONLINE, http://www.dtic.mil/whs/esd/osr/ (last visited

Aug. 22, 2016). The plaintiff’s experience suggests that, in practice, DOPSR

will not act on requests for exemptions concerning items not clearly subject to

the ITAR until DDTC issues a commodity jurisdiction determination.

The DDTC is required to provide a final commodity jurisdiction

determination within 45 days of a commodity jurisdiction request, but if it is

not then resolved, an applicant may request expedited processing. 22 C.F.R.

§ 120.4(e). The DDTC has been criticized by the Government Accountability

Office and the Office of Inspector General for routinely failing to meet

deadlines. In this case, it took nearly two years for DDTC to rule on the

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plaintiff’s commodity jurisdiction applications. Although an applicant may

appeal an unfavorable commodity jurisdiction determination within the State

Department, Id. § 120.4(g), Congress has excluded from judicial review the

agency’s discretionary decisions in “designat[ing] . . . items as defense articles

or defense services.” 22 U.S.C. § 2778(h); 22 C.F.R. § 128.1. 8

Should the DDTC determine, as here, that technical data are subject to

the ITAR, an “export” license is required before the information may be posted

online. But the license may be denied whenever the State Department “deems

such action to be in furtherance of world peace, the national security of the

United States, or is otherwise advisable.” 22 C.F.R. § 126.7(a)(1). There is a

nominal 60-day deadline for a licensing decision, which is riddled with

exceptions, and denial of an export license is expressly exempt from judicial

review. See 22 C.F.R. § 128.1.

I would hardly deny that the Department of Justice has good grounds for

prosecuting attempts to export weapons and military technology illegally to

foreign actors. Previous prosecutions have targeted defendants, e.g., who

8 While 22 U.S.C. § 2778 (h) withholds judicial review as noted, 22 C.F.R. § 128.1

purports more broadly to preclude judicial review over the Executive’s implementation of the

AECA under the Administrative Procedure Act. I would construe these provisions narrowly

to avoid difficult questions that might arise were the Government to take the position that

these provisions prevent judicial review for all claims, including those founded on the

Constitution. See Kirby Corp v. Pena, 109 F.3d 258, 261 (5th Cir. 1997) (“There is a strong

presumption that Congress intends there to be judicial review of administrative agency

action . . . and the government bears a ‘heavy burden’ when arguing that Congress meant to

withdraw all judicial review.”); Dart v. United States, 848 F.2d 217, 221 (D.C. Cir. 1988) (“If

the wording of a preclusion clause is less than absolute, the presumption of judicial review

also favors a particular category of plaintiffs’ claims.”); Cuozzo Speed Techs., LLC v. Lee,

136 S. Ct. 2131, 2142 (2016) (Agency “shenanigans” are “properly reviewable . . . under the

Administrative Procedure Act, which enables reviewing courts to set aside agency action that

is contrary to constitutional right, in excess of statutory jurisdiction, or arbitrary [and]

capricious.”) (internal quotations omitted).

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attempted to deliver WMD materials to North Korea, who sought to distribute

drone and missile schematics to China, and who attempted to license chemical

purchasing software to companies owned by the Iranian government. 9 Defense

Distributed agrees, moreover, that the Government may prosecute individuals

who email classified technical data to foreign individuals or directly assist

foreign actors with technical military advice. See, e.g., United States v. Edler

Industries, Inc., 579 F.2d 516 (9th Cir. 1978), construing prior version of

AECA. Yet, as plaintiff points out, at the time that DDTC stifled Defense

Distributed’s online posting, there were no publicly known enforcement actions

in which the State Department purported to require export licenses or prior

approval for the domestic posting of lawful, unclassified, not-otherwise-

restricted information on the Internet.

While Defense Distributed has been mired in this thicket of regulation,

the CAD files that it published continue to be available to the international

public to this day on websites such as the Pirate Bay. Moreover, technology

has not stood still: design files are now available on the Internet for six- and

eight-shot handguns that can be produced with 3D printing largely out of

plastic materials. See, e.g., Scott J. Grunewald, “The World’s First Fully

Printed Revolver is Here”, 3DPrintBoard.com (Nov. 23, 2015) (site visited

9/14/2016).

B. Discussion

As applied to Defense Distributed’s publication of technical data, the

State Department’s prepublication approval and license scheme lacks

9 See DEPARTMENT OF JUSTICE, SUMMARY OF MAJOR U.S. EXPORT ENFORCEMENT,

ECONOMIC ESPIONAGE, TRADE SECRET AND EMBARGO-RELATED CRIMINAL CASES (January

2009 to the present: updated August 12, 2015) 3, 11, 86 (2015), available at

https://www.pmddtc.state.gov/compliance/ documents/OngoingExportCaseFactSheet.pdf.

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statutory and regulatory authorization and invades the plaintiff’s First

Amendment rights because it is both a content-based regulation that fails

strict scrutiny and an unconstitutional prior restraint on protected speech. 10

1. The Statute and its Regulatory Interpretation.

Whether AECA itself, concerned with the “export” of defense article

related technical data, authorizes prepublication censorship of domestic

publications on the Internet is at least doubtful. Further, construing the State

Department’s regulations for such a purpose renders them incoherent and

unreasonable.

It is necessary first to analyze the statute under which the State

Department presumed to enact its regulations and, under the first prong of

Chevron analysis, what the statute means. 11 The term “export” is not defined

in the AECA, is not a term of legal art, and is not ambiguous. Under standard

canons of statutory construction, “export” should bear its most common

meaning. According to dictionaries, the verb “export” means “to ship

(commodities) to other countries or places for sale, exchange, etc.” United

States v. Ehsam, 163 F.3d 858, 859 (4th Cir. 1998) (citing The Random House

Dictionary of the English Language 682 (2d ed.1987)); Export, Black’s Law

Dictionary (10th ed. 2014) (“To send, take, or carry (a good or commodity) out

of the country; to transport (merchandise) from one country to another in the

course of trade”); United States v. Dien Duc Huynh, 246 F.3d 734, 741 (5th Cir.

2001) (“Exportation occurs when the goods are shipped to another country”).

10For simplicity only, I do not here address plaintiffs’ vagueness claim.

11It is hard to say whether the State Department’s interpretation of AECA should be

analyzed under Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842,

104 S. Ct. 2778, 2781 (1984) or United States v. Mead Corp., 533 U.S. 218, 227–28, 121 S. Ct.

2164, 2171–72 (2001). I refer to Chevron analysis arguendo because it captures both the

statute and the reasonableness of the regulations.

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As the court explained in Ehsam, which interpreted a Presidential

proclamation banning “exportation” of goods or technology to Iran, “[t]hese

definitions vary in specificity, but all make clear that exportation involves the

transit of goods from one country to another for the purpose of trade.” Id. See

also Swan v. Finch Co. v. United States, 190 U.S. 143, 145 (1903) (the “legal

notion…of exportation is a severance of goods from the mass of things

belonging to this country with an intention of uniting them to things belonging

to some foreign country or another”). As against a claim that the rule of lenity

should apply, the Ehsam court explicitly held that “export” is unambiguous.

Id. at 859–60

Given this construction of “export” by a fellow circuit court, we have no

reason to hold that Congress deviated from the term’s plain meaning,

particularly so significantly as to encompass the domestic publication on the

Internet, without charge and therefore without any “trade,” of lawful,

nonclassified, nonrestricted information. “Congress . . . does not alter the

fundamental details of a regulatory scheme in vague terms or ancillary

provisions—it does not, one might say, hide elephants in mouseholes.” King v.

Burwell, 135 S. Ct. 2480, 2495 (2015) (internal quotation omitted). Pursuant

to Chevron, where the meaning of a statute is plain, a federal agency has no

warrant to act beyond the authority delegated by Congress. Chevron, U.S.A.,

Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43, 104 S. Ct. 2778, 2781

(1984). The State Department’s briefing makes no effort to address the

statutory language, which must be read in light of established case law and

the term’s ordinary meaning and the rule of constitutional avoidance.

This determination of the meaning of “export” under Chevron step one

would normally resolve the case. For the sake of argument, however, it is also

clear that the State Department regulations fail the second step as well. Under

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the second step of Chevron analysis, they may be upheld only if they represent

a “reasonable” construction of the statute. Chevron, 467 U.S. at 844, 104 S. Ct.

at 2782. Defense Distributed and its amici challenge the regulations’

interpretation of “export” and the “public domain” exception to the definition

of “technical data.” Although the majority opinion adopts the State

Department’s litigating position that “export” refers only to publication on the

Internet, where the information will inevitably be accessible to foreign actors,

the warning letter to Defense Distributed cited the exact, far broader

regulatory definition: “export” means “disclosing (including oral or visual

disclosure) or transferring technical data to a foreign person, whether in the

United States of abroad.” There is embedded ambiguity, and disturbing

breadth, in the State Department’s discretion to prevent the dissemination

(without an “export” license) of lawful, non-classified technical data to foreign

persons within the U.S. The regulation on its face, as applied to Defense

Distributed, goes far beyond the proper statutory definition of “export.”

Even if “export” in AECA could bear a more capacious interpretation,

applying the State Department’s regulatory interpretation to the non-

transactional publication of Defense Distributed’s files on the Internet is

unreasonable. In terms of the regulations themselves, how this expansive

definition of “export” interacts with the “public domain” exception is unclear at

best. If any dissemination of information bearing on USML technical data to

foreign persons within the U.S. is potentially an “export,” then facilitating

domestic publication of such information free of charge can never satisfy the

“public domain” exception because newspapers, libraries, magazines,

conferences, etc. may all be accessed by foreign persons. The State

Department’s ipse dixit that “export” is consistent with its own “public domain”

regulation is incoherent and unreasonable. Even if these regulations are

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consistent, however, attempting to exclude the Internet from the “public

domain,” whose definition does not currently refer to the Internet, is irrational

and absurd. The Internet has become the quintessential “public domain.” The

State Department cannot have it both ways, broadly defining “export” to cover

non-transactional publication within the U.S. while solely and arbitrarily

excluding from the “public domain” exception the Internet publication of

Defense Distributed’s technical data.

The root of the problem is that the State Department’s litigating position

and its regulations put more weight on “export” than any reasonable

construction of the statute will bear. “Export” and “publication” are

functionally different concepts. Cf. Bond, 134 S. Ct. at 2090 (“[s]aying that a

person ‘used a chemical weapon conveys a very different idea than saying the

person ‘used a chemical in a way that caused some harm.’ ” Not only does the

State Department fail to justify according its interpretation Chevron deference,

but the doctrine of constitutional avoidance establishes that Chevron deference

would be inappropriate anyway. That doctrine provides that “where an

otherwise acceptable construction of a statute would raise serious

constitutional problems, the Court will construe the statute to avoid such

problems unless such construction is plainly contrary to the intent of

Congress.” Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr.

Trades Council, 485 U.S. 568, 575 (1988); see also id. at 574–75 (stating that

although the agency interpretation at issue “would normally be entitled to

deference,” “[a]nother rule of statutory construction [constitutional avoidance].

. . is pertinent here”); see also Solid Waste Agency of N. Cook County v. United

States Army Corps of Eng’rs, 531 U.S. 159, 174 (2001) (“We thus read the

statute as written to avoid the significant constitutional and federalism

questions raised by respondents’ interpretation, and therefore reject the

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request for administrative deference.”). As the following constitutional

discussion shows, the Executive Branch has consistently recognized the

conceptual difference between “export” and “publication”, and its

constitutional significance, throughout the forty-year history of the AECA. It

is only the novel threatened enforcement in this case that brings to the fore the

serious problems of censorship that courts are bound to address.

2. The First Amendment—Content-based speech restriction.

“Content-based laws—those that target speech based on its

communicative content—are presumptively unconstitutional and may be

justified only if the government proves they are narrowly tailored to serve

compelling state interests.” Reed v. Town of Gilbert, 135 S. Ct. 2218, 2226

(2015). “Government regulation of speech is content-based if a law applies to

particular speech because of the topic discussed or the idea or message

expressed.” Id. at 2227. “A speech regulation targeted at specific subject

matter is content based even if it does not discriminate among viewpoints

within that subject matter:” consequently, even a viewpoint neutral law can

be content-based. Id. at 2230. “Strict scrutiny applies either when a law is

content based on its face or when the purpose and justification for the law are

content based.” Id. at 2228.

The prepublication review scheme at issue here would require

government approval and/or licensing of any domestic publication on the

Internet of lawful, non-classified “technical information” related to “firearms”

solely because a foreign national might view the posting. As applied to the

publication of Defense Distributed’s files, this process is a content-based

restriction on the petitioners’ domestic speech “because of the topic discussed.”

Reed, 135 S. Ct. at 2227. Particularly relevant to this case is Holder v.

Humanitarian Law Proj., 561 U.S. 1, 27–28, 130 S. Ct. 2705, 2723–24 (2010),

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in which the Supreme Court held that as applied, a criminal statute forbidding

the provision of material support and resources to designated terrorist

organizations was content based and required strict scrutiny review. The Court

there rejected the government’s assertion that although the plaintiffs were

going to provide legal training and political advocacy to Mideast terrorist

organizations, the statute criminalized “conduct” and only incidentally affected

“speech.” Rejecting this incidental burden argument for intermediate scrutiny

review, the Court stated the obvious: “[p]laintiffs want to speak to the PKK

and the LTTE, and whether they may do so under §2239B depends on what

they say:” if their speech concerns “specialized knowledge” it is barred, but it

“if it imparts only general or unspecialized knowledge” it is permissible).

Humanitarian Law Proj., 130 S. Ct. at 2724.

The State Department barely disputes that computer-related files and

other technical data are speech protected by the First Amendment. See

Universal City Studios, Inc. v. Corley, 273 F.3d 429, 445–49 (2d Cir. 2001)

(discussing level of scrutiny owed for “speech” in the form of a decryption

computer program). There are CAD files on the Internet and designs,

drawings, and technical information about myriad items—jewelry, kitchen

supplies, model airplanes, or clothing, for example—that are of no interest to

the State Department. Only because Defense Distributed posted technical

data referring to firearms covered generically by the USML does the

government purport to require prepublication approval or licensing. This is

pure content-based regulation. 12

12 The Ninth Circuit held in United States v. Mak that “the AECA and its

implementing regulations are content-neutral” because “[t]he purpose of the AECA does not

rest upon disagreement with the message conveyed,” and because “ITAR defines the technical

data based on its function and not its viewpoint.” 683 F.3d 1126, 1134–35 (9th Cir. 2012).

Mak is distinguishable for a number of reasons. First, the defendant was prosecuted for

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The Government’s argument that its regulatory scheme is content-

neutral because it is focused on curbing harmful secondary effects rather than

Defense Distributed’s primary speech is unpersuasive. The Supreme Court

explained this distinction in Boos v. Barry, which overturned an ordinance

restricting criticism of foreign governments near their embassies because it

“focus[es] on the direct impact of speech on its audience.” Secondary effects of

speech, as the Court understood, include “congestion, [] interference with

ingress or egress, [] visual clutter, or [] the need to protect the security of

embassies”, which are the kind of regulations that underlie Renton v. Playtime

Theaters. 485 U.S. 312, 321, 108 S. Ct. 1157, 1163–64 (1988). Similarly, the

regulation of speech here is focused on the “direct impact of speech on its

audience” because the government seeks to prevent certain listeners—foreign

nationals—from using the speech about firearms to create guns.

The State Department also asserts that the ITAR regulatory scheme is

not content-based because the information here at issue is “functional,” that is,

that downloading the Defense Distributed files directly enables the creation of

3D printed gun and gun components “at the push of a button.” This argument

is flawed factually and legally. First, more than CAD (or CNC) files are

involved in the information sought to be regulated by the State Department:

attempting to export to the People’s Republic of China sensitive submarine technology loaded

on unauthorized CDs and was arrested when he was carrying them aboard an international

flight. Second, Mak was decided before Reed where the Supreme Court counseled that

“[s]ome facial distinctions based on a message are obvious, defining regulated speech by

particular subject matter, and others are more subtle, defining regulated speech by its

function or purpose. Both are distinctions drawn based on the message a speaker conveys,

and, therefore, are subject to strict scrutiny.” 135 S. Ct. at 2230. Third, even if the case is

analyzed as a content-based restriction, Mak’s prosecution falls comfortably within the

traditional understanding of “export.” The government’s heightened interest in national

security is evident, and the Court required the government to prove beyond a reasonable

doubt that the technical information he was carrying was not in the public domain.

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its warning letter to Defense Distributed identified both “files” and “technical

data,” which include design drawings, rendered images, and written

manufacturing instructions. Second, CAD files do not “direct a computer” to

do anything. As the amicus Electronic Frontier Foundation explains, “[T]o

create a physical object based on a CAD file, a third party must supply

additional software to read these files and translate them into the motions of

a 3D print head, the 3D printer itself, and the necessary physical materials.”

The person must provide know-how, tools and materials to assemble the

printed components, e.g. treating some parts of the Liberator with acetone to

render them functional. In effect, the “functionality” of CAD files differs only

in degree from that of blueprints. Legally, this argument is an attempt to fit

within the Corley case, referenced above, which concerned a computer program

that by itself provided a “key” to open otherwise copyright-restricted online

materials; those facts are far afield from the technical data speech at issue

here. Corley, 273 F.3d at 449–55.

Because the regulation of Defense Distributed’s speech is content-based,

it is necessary to apply strict scrutiny. The district court erred in applying the

lower intermediate scrutiny standard. I would not dispute that the

government has a compelling interest in enforcing the AECA to regulate the

export of arms and technical data governed by the USML. The critical issue is

instead whether the government’s prepublication approval scheme is narrowly

tailored to achieve that end. A regulation is not narrowly tailored if it is

“significantly overinclusive.” Simon & Schuster, Inc. v. Members of N.Y. State

Crime Victims Bd., 502 U.S. 105, 121, 112 S. Ct. 501, 511 (1991).

“[S]ignificantly overinclusive,” however, aptly describes the

Government’s breathtaking assertion of prepublication review and licensing

authority as applied in this case. To prevent foreign nationals from accessing

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technical data relating to USML-covered firearms, the government seeks to

require all domestic posting on the Internet of “technical data” to be pre-

approved or licensed by the DDTC. No matter that citizens have no intention

of assisting foreign enemies directly, communications about firearms on

webpages or blogs must be subject to prior approval on the theory that a foreign

national might come across the speech. This flies in the face of Humanitarian

Law Project. Although a statute prohibiting the provision of “material support

and resources” to designated terrorist groups did not violate First Amendment

rights where plaintiffs intended to directly assist specific terrorist

organizations, the Court “in no way suggest[ed] that a regulation of

independent speech would pass constitutional muster, even if the Government

were to show that such speech benefits foreign terrorist organizations…[or]

that Congress could extend the same prohibition on material support at issue

here to domestic organizations.” 561 U.S. at 36–39, 130 S. Ct. at 2729–30. The

State Department’s ITAR regulations, as sought to be applied here, plainly

sweep in and would control a vast amount of perfectly lawful speech.

Two exceptions to the regulations do not eliminate the problem of

overinclusiveness. First, general scientific, mechanical, or engineering

principles taught in schools is deemed exempt from ITAR as information in the

public domain. This exception does not, however, appear to save from potential

regulation and licensing the amateur gunsmith or hobby shooter who discusses

technical information about the construction of firearms on an Internet

webpage. Any information so shared is not necessarily “general scientific,

mechanical, or engineering principles taught in schools.” Underscoring this

problem, at oral argument the government would not definitively answer

whether the State Department would purport to regulate the posting of such

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unclassified technical data that appeared in library books or magazines like

Popular Mechanics.

Second, the State Department has taken the position in this litigation

that the “public domain” exception applies only to information already in the

public domain. Its interpretation of the technical data regulations would

permit the DDTC to stifle online discussion of any innovations related to

USML-covered firearms because new information would, by definition, not be

in the public domain already. Amicus Reporters Committee for Freedom of the

Press and the Thomas Jefferson Center for the Protection of Free Expression

correctly expresses fear about journalists’ ability to report, without DDTC

approval, on the latest technological innovations related to any items covered

by the USML.

Lest this concern of overinclusiveness be perceived as hyperbole,

consider that in 2013, CNET published an article containing an unredacted

copy of a document detailing performance requirements for unmanned U.S.

military surveillance drones. 13 Should CNET have applied for approval or a

license from the DDTC prior to publication? The State Department’s

interpretation of the regulations could lead to that conclusion. See 22 C.F.R.

§ 121.1, Category VIII, item (i) (technical data related to aircraft and related

articles). The USML-related technical discussed there (1) were “exported”

because of their availability to foreign persons by publication on the Internet,

and (2) the “public domain” exception would be of no avail since the

information had not been in the public domain (narrowly defined to exclude

13 See Declan McCullagh, DHS Built Domestic Surveillance Tech into Predator Drones,

CNET (Mar. 2, 2013, 11:30 AM), http://www.cnet.com/news/dhs-built-domestic-surveillance-

tech-into-predator-drones/.

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the Internet) before publication in the CNET article. On the Government’s

theory, journalists could be subject to the ITAR for posting articles online.

The State Department also asserts that, somehow, the information

published by Defense Distributed would have survived regulatory scrutiny

(query before or after submission to DDTC?) if the company had “verified the

citizenship of those interested in the files, or by any other means adequate to

ensure that the files are not disseminated to foreign nationals.” Government

brief at 20. Whatever this means, it is a ludicrous attempt to narrow the ambit

of its regulation of Internet publications. Everyone knows that personally

identifying information can be fabricated on electronic media. Equally

troubling, if the State Department truly means what it says in brief about

screening out foreign nationals, then the “public domain” exception becomes

useless when applied to media like print publications and TV or to gatherings

open to the public.

In sum, it is not at all clear that the State Department has any concern

for the First Amendment rights of the American public and press. Indeed, the

State Department turns freedom of speech on its head by asserting, “The

possibility that an Internet site could also be used to distribute the technical

data domestically does not alter the analysis….” The Government bears the

burden to show that its regulation is narrowly tailored to suit a compelling

interest. It is not the public’s burden to prove their right to discuss lawful,

non-classified, non-restricted technical data. As applied to Defense

Distributed’s online publication, these overinclusive regulations cannot be

narrowly tailored and fail strict scrutiny.

3. The First Amendment--Prior Restraint.

The Government’s prepublication approval and licensing scheme also

fails to pass constitutional muster because it effects a prior restraint on speech.

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The classic description of a prior restraint is an “administrative [or] judicial

order[] forbidding certain communications when issued in advance of the time

that such communications are to occur.” Catholic Leadership Coalition of Tex.

v. Reisman, 764 F.3d 409, 437 (5th Cir. 2014) (citing Alexander v. United

States, 509 U.S. 544, 550, 113 S. Ct. 2766, 2771 (1993)). The State

Department’s prepublication review scheme easily fits the mold.

Though not unconstitutional per se, any system of prior restraint bears

a heavy presumption of unconstitutionality. FW/PBS, Inc. v. City of Dallas,

493 U.S. 215, 225, 110 S. Ct. 596, 604 (1990). Generally, speech licensing

schemes must avoid two pitfalls. First the licensors must not exercise

excessive discretion. Catholic Leadership Coalition, 764 F.3d at 437 (citing

Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 757, 108 S. Ct. 2138, 2144

(1988)). “[N]arrowly drawn, reasonable and definite standards” should guide

the licensor in order to avoid “unbridled discretion” that might permit the

official to “encourag[e] some views and discourag[e] others through the

arbitrary application” of the regulation. Forsyth Cty., Ga. v. Nationalist

Movement, 505 U.S. 123, 133, 112 S. Ct. 2395, 2402–03 (1992).

Second, content-based 14 prior restraints must contain adequate

procedural protections. The Supreme Court has requires three procedural

safeguards against suppression of protected speech by a censorship board:

(1) any restraint before judicial review occurs can be imposed for only a

specified brief period of time during which the status quo is maintained;

(2) prompt judicial review of a decision must be available; and (3) the censor

must bear the burdens of going to court and providing the basis to suppress

14 As described above, the ITAR regulation of posting to the Internet technical data

related to USML-covered firearms is content-based. Thus, it is subject to the procedural

requirements set forth in Freedman v. Maryland.

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the speech. N.W. Enters. v. City of Houston, 352 F.3d 162, 193–94 (5th Cir.

2003) (citing Friedman v. Maryland, 380 U.S. 51, 58–59, 85 S. Ct. 734, 739

(1965)). In sum, a court reviewing a system of prior restraint should examine

“both the law’s procedural guarantees and the discretion given to law

enforcement officials.” G.K. Ltd. Travel v. City of Lake Oswego, 436 F.3d 1064,

1082 (9th Cir. 2006); see also East Brooks Books, Inc. v. Shelby Cty.,

588 F.3d 360, 369 (6th Cir. 2009); Weinberg v. City of Chi., 310 F.3d 1029, 1045

(7th Cir. 2002).

To the extent it embraces publication of non-classified, non-

transactional, lawful technical data on the Internet, the Government’s scheme

vests broad, unbridled discretion to make licensing decisions and lacks the

requisite procedural protections. First, as explained above, the “export”

regulations’ virtually unbounded coverage of USML-related technical data

posted to the Internet, combined with the State Department’s deliberate

ambiguity in what constitutes the “public domain,” renders application of ITAR

regulations anything but “narrow, objective, and definite.” The stated

standards do not guide the licensors to prevent unconstitutional prior

restraints. Shuttlesworth v. City of Birmingham, 394 U.S. 147, 151, 89 S. Ct.

935, 938 (1969). The State Department’s brief actually touts the case-by-case

nature of the determination whether to prevent Internet publication of

technical data. 15

In City of Lakewood v. Plain Dealer Publishing Co., for example, the

Supreme Court held that a city ordinance insufficiently tailored the Mayor’s

15 Compounding confusion, the ITAR grant broad discretion to DDTC to deny an

export license if it “deems such action to be in furtherance of world peace, the national

security or the foreign policy of the United States, or is otherwise advisable.” 22 C.F.R.

§ 126.7(a)(1) (emphasis added).

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discretion to issue newspaper rack permits because “the ordinance itself

contains no explicit limits on the mayor’s discretion” and “nothing in the law

as written requires the mayor to do more than make the statement ‘it is not in

the public interest’ when denying a permit application.” 486 U.S. at 769,

108 S. Ct. at 2150–51. Like the “illusory ‘constraints’’’ in Lakewood, id. at 769,

the ITAR prepublication review scheme offers nothing but regulatory (or

prosecutorial) discretion, as applied to the technical data at issue here, in lieu

of objective standards. Reliance on the censor’s good faith alone, however, “is

the very presumption that the doctrine forbidding unbridled discretion

disallows.” Id. at 770. Cf. Humanitarian Law Project, 130 S. Ct. at 2728

(listing numerous ways in which Congress had exhibited sensitivity to First

Amendment concerns by limiting and clarifying a statute’s application and

“avoid[ing] any restriction on independent advocacy, or indeed any activities

not directed to, coordinated with, or controlled by foreign terrorist groups”).

Just as troubling is the stark lack of the three required procedural

protections in prior restraint cases. Where a commodity jurisdiction

application is necessary, the alleged 45-day regulatory deadline for such

determinations seems to be disregarded in practice; nearly two years elapsed

between Defense Distributed’s initial request and a response from the DDTC.

Further, the prescribed time limit on licensing decisions, 60 days, is not

particularly brief. See Teitel Film Corp. v. Cusak, 390 U.S. 139, 141, 88 S. Ct.

754, 756 (1968).

More fundamentally, Congress has withheld judicial review of the State

Department’s designation of items as defense articles or services. See 22

U.S.C. § 2778(h); 22 C.F.R. § 128.1 (precluding judicial view of the Executive’s

implementation of the AECA under the APA). The withholding of judicial

review alone should be fatal to the constitutionality of this prior restraint

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scheme insofar as it involves the publication of unclassified, lawful technical

data to the Internet. See City of Littleton, Colo. v. Z.J. Gifts D-4, LLC, 541 U.S.

774, 781, 124 S. Ct. 2219, 2224 (2004) (noting that the Court’s decision in

FW/PBS, Inc. v. City of Dallas, interpreting Freedman’s “judicial review”

safeguard, requires “a prompt judicial decision,” as well as prompt access to

the courts). And where judicial review is thwarted, it can hardly be said that

DDTC, as the would-be censor, can bear its burden to go to court and support

its actions.

C. The Government’s Interest, Balancing the Interests

A brief discussion is necessary on the balancing of interests as it should

have been done in light of the facts of this case. No one doubts the federal

government’s paramount duty to protect the security of our nation or the

Executive Branch’s expertise in matters of foreign relations. Yet the

Executive’s mere incantation of “national security” and “foreign affairs”

interests do not suffice to override constitutional rights. The Supreme Court

has long declined to permit the unsupported invocation of “national security”

to cloud the First Amendment implications of prior restraints. See New York

Times Co. v. United States, 403 U.S. 713, 714, 91 S. Ct. 2140, 2141 (1971)

(reversing the grant of an injunction precluding the New York Times and the

Washington Post from publishing the Pentagon Papers, a classified study of

United States involvement in Vietnam from 1945–1967); id. at 730 (Stewart,

J., concurring) (noting that because he cannot say that disclosure of the

Pentagon Papers “will surely result in direct, immediate, and irreparable

damage to our Nation or its people,” publication may not be enjoined consonant

with the First Amendment). Indeed, only the most exceptional and immediate

of national security concerns allow a prior restraint on speech to remain in

place:

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the protection as to previous restraint is not absolutely unlimited. But

the limitation has been recognized only in exceptional cases . . . .[n]o

one would question but that a government might prevent actual

obstruction to its recruiting service or the publication of sailing dates of

transports or the number and location of troops. On similar grounds,

the primary requirements of decency may be enforced against obscene

publications. The security of the community life may be protected

against incitements to acts of violence and the overthrow by force of

orderly government.

Near v. Minnesota ex rel. Olson, 283 U.S. 697, 716, 51 S. Ct. 625, 631 (1931);

cf. Haig v. Agee, 453 U.S. 280, 306–08, 101 S. Ct. 2766, 2781–82 (1981) (holding

that the Secretary of State’s revocation of Haig’s passport did not violate First

Amendment rights because his actions exposing undercover CIA agents abroad

threatened national security). No such exceptional circumstances have been

presented in this case. Indeed, all that the majority can muster to support the

government’s position here is that

the State Department’s stated interest in preventing foreign

nationals—including manner of enemies of this country—from

obtaining technical data on how to produce weapons and weapon

parts is not merely tangentially related to national defense and

national security; it lies squarely within that interest.

Neither the district court nor the State Department offers anything else. 16

With that kind of reasoning, the State Department could wholly eliminate the

“public domain” and “scholarly” exceptions to the ITAR and require pre-

publication approval of all USML-related technical data. This is clearly not

16The State Department notes the fear that a single-shot pistol undetectable by metal-

sensitive devices could be used by terrorists. The Liberator, however, requires a metal firing

pin.

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what the Supreme Court held in the Pentagon Papers or Near cases. See

generally L.A. Powe, Jr., The H-Bomb Injunction, 61 U.Colo.L.Rev. 55 (1990).

Without any evidence to the contrary, the court should have held that

the domestic Internet publication of CAD files and other technical data for a

3D printer-enabled making of gun parts and the Liberator pistol presents no

immediate danger to national security, especially in light of the fact that many

of these files are now widely available over the Internet and that the world is

awash with small arms. 17

Further, the government’s pro-censorship position in this case

contradicts the express position held within the Executive Branch for the

nearly forty-year existence of the AECA. The State Department’s sudden

turnabout severely undercuts its argument that prepublication review and

licensing for the publication of unclassified technical data is justified by

pressing national security concerns. Indeed, in the late 1970s and early 1980s,

at the height of the Cold War, the Department of Justice’s Office of Legal

Counsel repeatedly offered written advice that a prepublication review process

would raise significant constitutional questions and would likely constitute an

impermissible prior restraint, particularly when applied to unclassified

technical data disseminated by individuals who do not possess specific intent

to deliver it to particular foreign nationals. Further, in a 1997 “Report on the

Availability of Bombmaking Information,” the Department of Justice observed

the widespread availability of bombmaking instructions on the Internet, in

17 The Government also vaguely asserts that imposing a prior restraint upon the

domestic publication of the technical data here is justified to protect foreign relations with

other countries that have more restrictive firearms laws than the United States. Inflicting

domestic speech censorship in pursuit of globalist foreign relations concerns (absent specific

findings and prohibitions as in Humanitarian Law Project) is dangerous and unprecedented.

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libraries, and in magazines. The Department of Justice then argued against

government censorship, concluding that despite the distinct possibility that

third parties can use bombmaking instructions to engage in illegal conduct, a

statute “proscrib[ing] indiscriminately the dissemination of bombmaking

information” would face First Amendment problems because the government

may rarely prevent the dissemination of truthful information. 18

With respect to the ITAR’s regulation of “technical data,” DDTC’s

director has taken the position in litigation that the State Department “does

not seek to regulate the means themselves by which information is placed in

the public domain” and “does not review in advance scientific information to

determine whether it may be offered for sale at newsstands and bookstores,

through subscriptions, second-class mail, or made available at libraries open

to the public, or distributed at a conference or seminar in the United States.”

Second Declaration of William J. Lowell Department of State Office of Defense

Trade Controls at 11, Bernstein v. U.S. Dep’t of State, 945 F. Supp. 1279 (N.D.

Cal. 1996). Moreover, he added, “the regulations are not applied to establish a

prepublication review requirement for the general publication of scientific

information in the United States.” Id.

Finally, the State Department’s invocation of unspecified national

security concerns flatly contradicts its contention that while Defense

Distributed’s very same technical data cannot be published on the Internet,

they may be freely circulated within the U.S. at conferences, meetings, trade

shows, in domestic print publications and in libraries. (Of course, as above

noted, the Government’s sincerity on this point is subject to doubt, based on

18DEPARTMENT OF JUSTICE, 1997 REPORT ON THE AVAILABILITY OF BOMBMAKING

INFORMATION 3, 5–7, 19–29 (1997).

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the determined ambiguity of its litigating position.) After all, if a foreign

national were to attend a meeting or trade show, or visit the library and read

a book with such information in it, under the Government’s theory, the

technical data would have been “exported” just like the Internet posts, because

it was “[d]isclos[ed] (including oral or visual disclosure). . . to a foreign person

. . . in the United States or abroad.” Id. § 120.17(a)(4).

***

By refusing to address the plaintiffs’ likelihood of success on the merits

and relying solely on the Government’s vague invocation of national security

interests, the majority leave in place a preliminary injunction that degrades

First Amendment protections and implicitly sanctions the State Department’s

tenuous and aggressive invasion of citizens’ rights. The majority’s non-

decision here encourages case-by-case adjudication of prepublication review

“requests” by the State Department that will chill the free exchange of ideas

about whatever USML-related technical data the government chooses to call

“novel,” “functional,” or “not within the public domain.” It will foster further

standardless exercises of discretion by DDTC censors.

Today’s target is unclassified, lawful technical data about guns, which

will impair discussion about a large swath of unclassified information about

firearms and inhibit amateur gunsmiths as well as journalists. Tomorrow’s

targets may be drones, cybersecurity, or robotic devices, technical data for all

of which may be implicated on the USML. This abdication of our

decisionmaking responsibility toward the First Freedom is highly regrettable.

I earnestly hope that the district court, on remand, will take the foregoing

discussion to heart and relieve Defense Distributed of this censorship.

42