Alan Gottlieb
By Dave Workman | Senior Editor
The Second Amendment Foundation and Defense Distributed of Texas have joined in a federal lawsuit against the State Department that could have far-reaching implications on several constitutional grounds, alleging prior restraint by the government over on-line publication of information related to three-dimensional printing of arms.
The lawsuit was filed in U.S. District Court for the Western District of Texas, Austin Division.
Defendants in the lawsuit are Secretary of State John Kerry, the Department of State, the Directorate of Defense Trade Controls and four State Department officials. SAF and Defense Distributed are represented by an impressive legal team led by attorney Alan Gura of Gura & Possessky, with William “Tommy” Jacks, Bill Mateja, and David Morris of Fish & Richardson, plus export control counsel Matthew Goldstein, and constitutional law Professor Josh Blackman.
According to the complaint, Defense Distributed generated technical information on various gun-related items, and had published the information on the Internet. The company was then warned that it may have released technical data controlled by the International Traffic in Arms Regulations (ITAR) without prior authorization from the Directorate of Defense Trade Controls (DDTC). Defense Distributed subsequently removed all of the published files from its servers, the complaint says.
“Defense Distributed appears caught in what appears to be a bureaucratic game of merry-go-round,” said SAF founder and Executive Vice President Alan M. Gottlieb. “The right to keep and bear arms includes the ability to acquire or create arms. The government is engaging in behavior that denies this company’s due process under the Fifth Amendment. We’re compelled to file this action because the bureaucracy is evidently playing games and it’s time for these agencies to behave.”
Defense Distributed founder Cody Wilson told TGM via telephone that he had been “imagining this day for, like two years.”
That was when he was initially warned by the government to pull down the information from the Internet. He saw that as an abridgement of his right to free speech.
Wilson pointed to the irony that “free speech liberals” will be “pretty conflicted” by the lawsuit because they may have to decide whether they want a world with “managed information” or a world with firearms. Liberals do not care for restrictions on free speech, he indicated.
According to the complaint, Defense Distributed submitted various published files to DDTC for review of a machine called the “Ghost Gunner” almost two years ago, in June 2013. In April, DDTC said the machine does not fall under ITAR, but that software and files are subject to State Department jurisdiction.
The government’s restraint against the publication of this information, under the guise of controlling arms exports, violates the First Amendment right to free speech, the Second Amendment right to bear arms, and the Fifth Amendment right to due process, the lawsuit alleges.
Gottlieb said the issues in this action are complicated, because they cover lots of ground dealing with three areas of the constitution. The lawsuit alleges that the defendants are unlawfully applying ITAR to prevent the plaintiffs from exercising in free speech on the Internet and other forums. ITAR “requires advance government authorization to export technical data,” the complaint asserts. There are criminal and civil penalties for violations, ranging up to 20 years in prison and fines of up to $1 million per violation.
“Americans have always been free to exchange information about firearms and manufacture their own arms,” Gottlieb said. “We also have an expectation that any speech regulations be spelled out clearly, and that individuals be provided basic procedural protections if their government claims a power to silence them.”
