I wish this guy all the luck. — jtl, 419
That is the legal argument being made by Cody Wilson, a Texas man who gained attention two years ago by posting what are believed to be the world’s first online instructions for how to build a 3-D printable gun. Mr. Wilson’s files for what he called the Liberator, a single-shot pistol mostly made of plastic, were partly a statement about freedom in the digital age and partly a provocation — and provoke they did.
A few days after the plans for the Liberator were put online, the State Department ordered Mr. Wilson to remove them, threatening him with jail time and million-dollar fines for having possibly broken rules that govern the export of military data.
Now, with a high-powered legal team behind it, Mr. Wilson’s company, Defense Distributed, has filed suit against the State Department, claiming that its efforts to stop him from publishing his plans, which are no more than computer code, amount to a prior restraint on free speech. The 25-page suit, filed on Wednesday in Federal District Court in Austin, Tex., is an innovative and apparently unprecedented effort to use the First Amendment in support of the Second.
“Defense Distributed believed, and continues to believe, that the United States Constitution guarantees a right to share truthful speech,” the lawsuit states. “Especially speech concerning fundamental constitutional rights in open forums.”
The case began in May 2013, when Mr. Wilson, who was then in law school at the University of Texas, got a letter from the State Department informing him that by posting his files online he may have violated a complicated set of federal rules, the International Traffic in Arms Regulations, which seek to prevent the export of sensitive military hardware, including weapons technology.
The letter, from the Directorate of Defense Trade Controls, a State Department office, told him to take the files down while officials reviewed whether he needed a license to disseminate what it referred to as “defense articles.”
Mr. Wilson, 27, claims he spent thousands of dollars over the next two years on lawyers who helped him file paperwork in an effort to comply with the regulations, which are known as ITAR. When the State Department did not make a decision in that time on whether he needed a license, he came to believe he was being singled out for scrutiny — in part because his files were published not long after the Sandy Hook school shootings in Connecticut in which 26 people, many of them children, were killed.
Worried that he was being thrust into a kind of legal limbo, Mr. Wilson filed suit, asking for judicial permission to repost his files and seeking damages.
“After Sandy Hook, the government decided that it wanted to stop this,” Matthew Goldstein, one of Mr. Wilson’s lawyers, said, referring to the publication of the files. “But there were no laws that allowed them to do so within the Constitution. So they reached into their bag of tricks and suddenly pulled out ITAR.”
Mr. Goldstein added that the authorities were supposed to have made their ruling within 60 days. “But now it’s two years later and Cody’s still waiting,” he said.
While the State Department declined to comment on the suit, legal experts said only a few previous cases have touched on similar issues.
In 1979, for instance, the Department of Energy sued The Progressive magazine after one of its reporters wrote an article that purported to disclose the recipe for making a hydrogen bomb. The government prevailed in a lower court but dropped its claim on appeal after the reporter, Howard Morland revealed that he had cobbled his article together from sources that were publicly available.
Then in 1983, Paladin Press, a small publishing company, released the book “Hit Man: A Technical Manual for Independent Contractors.” A decade later, a triple murder was committed in Montgomery County, Ala., by a man who claimed that he had used the book as a how-to guide. In 1996, the family of the victims sued Paladin Press, arguing that the publisher had aided and abetted the killings.
The next year an appeals court ruled that the book was not protected by the First Amendment. Paladin Press’s insurance company settled with the family, paying several million dollars and agreeing to destroy the remaining copies.
Despite these rulings, Ken Paulson, the president of the First Amendment Center, said Mr. Wilson’s claim was, at the very least, not frivolous and brought into question whether a citizen’s First Amendment rights extend beyond the country’s borders. ITAR bans the export of protected weapons systems, but it remains unclear if Mr. Wilson would have violated its rules if he had posted his instructions on file servers accessible only within the United States.
“The presumption is that whatever information people want to share is protected, and the government can’t tell them they can’t publish,” Mr. Paulson said. “But a key question here will be if restrictions can be put on Wilson in a way that doesn’t chill his free speech within the United States.”
While Mr. Wilson is a gun enthusiast, he has long maintained that his goal in publishing his files was not necessarily a Second Amendment issue, but rather a declaration that the government should not be in the business of controlling information about new technologies.
“I’ve always led with the rhetoric that information should be free,” he said, “but there was also an attitude of rote defiance, an allergy to authority, that I think is authentically American.”
It is because of that attitude, he said, that he believes he has found himself under withering government scrutiny.
“My speech was inconvenient and politically ill-timed,” he said. “But I’m prideful, and I intend to fight.”
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