The free speech fight over DIY guns

Dueling lawsuits filed in federal courts in Washington state and Texas last week seek to control the home production of 3D-printed plastic guns. Gun rights and free speech advocates say the state and federal government actions threaten the right to bear arms and stymie speech before it is uttered or, in this case, downloaded.

After winning a settlement with the U.S. State Department in June, Cody Wilson, owner of Defense Distributed, boasted on his company’s website that the age of printable guns would begin last Wednesday, when he reposted the code for printing a single-shot, plastic handgun called the Liberator. But U.S. District Judge Robert Lasnik in Seattle shot down Wilson’s plan with a temporary restraining order, not against Wilson but against the State Department.

Last Tuesday’s order blocked the settlement that allowed Wilson to post the code the State Department forced him to take down from his website in 2013. Eight Democratic state attorneys general filed a lawsuit demanding the State Department revoke the settlement as unconstitutional.

In his decision, Lasnik agreed with the dire predictions laid out in the lawsuit, saying, the states “have a clear and reasonable fear that the proliferation of untraceable, undetectable weapons will enable” a host of lawbreakers and mentally ill people to make a gun.

But those arguments ignore the fact that Americans can legally make or modify firearms for their personal use. Those personal firearms do not require a serial number, hence the misleading use of “untraceable,” said Texas attorney and gun rights advocate Charles Cotton. Computer code and a 3D printer simply give gun enthusiasts new tools for an old craft. And Wilson’s code includes space in the final product for the required metal chip that makes the Liberator detectable and legal.

Days before the state attorneys general filed their lawsuit, Wilson received a cease-and-desist order from New Jersey Attorney General Gurbir Grewal and a public admonition from Los Angeles City Attorney Michael Feuer demanding the “blueprints should not be published under any circumstances."

Wilson responded by filing a preemptive lawsuit in the U.S. District Court of Western Texas against the two attorneys, claiming their actions were “an unconstitutional prior restraint on protected speech.”

Alan Gottlieb, vice president of the Second Amendment Foundation, said he suspected the attorneys general sued the State Department instead of Defense Distributed because of the free speech defense Wilson successfully employed to win the State Department settlement.

“The states didn’t want to get into a First Amendment fight,” he said.

Even though several courts have ruled computer code is speech, Cotton admitted the precedent is in flux. Without an explicit conflict in appellate court rulings, the U.S. Supreme Court won’t address the issue soon. But despite the lack of a definitive ruling, Wilson’s free speech claims are legally solid, Cotton told me.

“Speech has never been held to refer only to the spoken word interpreted by a person’s ear,” he said, noting the courts’ extension of speech protections to the media used for transmitting speech like the printing press, radio, television, the internet, and, in 1996, software code.

“This court can find no meaningful difference between computer language, particularly high-level languages as defined above, and German or French. … Like music and mathematical equations, computer language is just that, language, and it communicates information either to a computer or to those who can read it,” said U.S. District Judge Marilyn Patel in her decision denying the government’s dismissal request in Bernstein v. U.S. Department of Justice.

In that case, University of California, Berkeley, math researcher Dan Bernstein wanted to publish his newly created encryption algorithm. The federal government used the same regulation about international arms traffic to thwart Bernstein and Wilson.

“That horse is already out of the barn,” Gottlieb said.

The Liberator code has been downloaded 200,000 times and is posted on multiple websites with the exception of Wilson’s.

Judge Lasnik will hear arguments Friday to determine whether to turn the temporary restraining order into a preliminary injunction.

Bah humbug!

To paraphrase Ebenezer Scrooge or, more recently, the U.S. Court of Appeals for the District of Columbia Circuit, the Catholic Archdiocese of Washington, D.C., can keep Christmas in their way and the D.C. Metro can keep it in theirs.

In a 2-0 vote, a court panel ruled July 28 that the federally funded Washington Metropolitan Area Transit Authority can refuse advertising based on religious content. U.S. Supreme Court nominee Judge Brett Kavanaugh heard oral arguments in March but recused himself from the decision. In two concurring opinions, the two remaining judges ruled the archdiocese failed to demonstrate the Metro impermissibly suppressed religious speech when it denied space to the sparsely worded Christmas ad last year.

The archdiocese called the Metro’s policy prohibiting advertisements “that promote or oppose any religion [or] religious practice” overly broad. But if the archdiocese prevailed, the Metro and other transit systems would be forced to accept “all types of advertisements” to maintain viewpoint neutrality, the court said.

Complaints about advertising content prompted the Metro to change its policy in 2015 and limit who could advertise with the agency.

The archdiocese has not announced whether it will appeal, but Ed McFadden, archdiocese secretary for communications, said the church “will continue to defend those rights at every opportunity.”

Maybe the archdiocese will wrap up an appeal in time for Christmas. —B.P.

Prayer problems

The Freedom from Religion Foundation filed a lawsuit July 31 demanding the Parkersburg, W.Va., City Council stop praying before its meetings. And this time the litigious organization might have the backing of the U.S. Supreme Court.

In June, the Supreme Court declined to hear an appeal by commissioners from Rowan County, N.C., of a 4th U.S. Circuit Court of Appeals decision declaring their pre-meeting prayers unconstitutional. By denying the appeal, the high court left in place the 4th Circuit decision, which affects five states, including West Virginia.

Parkersburg City Attorney Joe Santer did not immediately respond to questions about the lawsuit.

Before city council meetings are gaveled into session, council members stand to recite the Lord’s Prayer and prompt attendees to join them. Two Parkersburg residents, plaintiffs in the lawsuit, said the practice made them feel uncomfortable and embarrassed for not participating.

Parkersburg Mayor Tom Joyce defended the practice because the prayer is offered before the meeting begins. But the FFRF rejected that notion in a 2015 letter demanding the council stop praying or face the legal consequences.

The lawsuit asks the U.S. District Court for the Southern District of West Virginia to declare the practice unconstitutional and issue a permanent injunction to stop it. —B.P.

Duty-bound

An Army investigator has recommended chaplain Maj. Scott Squires, who serves at Fort Bragg in North Carolina, be found guilty of dereliction of duty for his response to a same-sex couple’s request to attend a marriage retreat. The chaplain, according to an Aug. 1 investigative report, misrepresented information during the investigation and also violated Army Equal Opportunity policy.

The investigator, Maj. Alexander Ford, “manifests an impermissible hostility towards religion” said Michael Berry, an attorney with First Liberty, in a letter to Col. William Rice, commander of the Special Warfare Education Group in which Squires serves. Berry asked Rice to disapprove Ford’s conclusions and recommendations due to “unlawful discrimination,” an unsubstantiated complaint, and “factual discrepancies.”

A female sergeant in a same-sex marriage filed an equal opportunity complaint in February against Squires after she said he failed to accept the couple’s registration for the military-sponsored Strong Bonds marriage event. Squires’ sponsoring organization, the Southern Baptist Convention’s North American Mission Board, prohibits affirming homosexuality, so he sought to reschedule the event with another chaplain.

Ford acknowledged Squires’ right under the First Amendment and the doctrine and practices of SBC to act according to his faith.

“However,” Ford added, “the ‘shield’ that is afforded … Squires does not permit [him], or any soldier, to use the ‘shield’ as a ‘sword’ to cut off the rights of others.”

If Squires’ commanders accept Ford’s recommendations, military chaplains will question their ability to act on their faith “without fear of this kind of threat,” Berry told Rice. —B.P.