Experts: Stein wrong to support ban on circulating plastic gun blueprints

Some First Amendment experts say a federal judge in Seattle erred in blocking a company from publishing blueprints for plastic guns, and N.C. Attorney General Josh Stein is wrong for supporting the decision because it’s an unconstitutional prior restraint on free speech.

Stein posted on Twitter, and copied his post on the state Department of Justice website Tuesday, July 31: “Breaking: A federal judge just issued a nationwide injunction to stop the release of blueprints to make untraceable and undetectable 3D-printed plastic guns. I thank Washington [Attorney General] Bob Ferguson for leading this effort. I look forward to supporting his efforts.”

Ferguson was among attorneys general in eight states and the District of Columbia who sued the Trump administration to block Texas resident Cody Wilson’s Defense Distributed nonprofit organization from putting plans online to make plastic guns by computer download and 3D printer.

U.S. District Court Judge Robert Lasnik, a President Clinton appointee, issued a temporary restraining order barring release of the technical plans. He said it would cause irreparable harm, but acknowledged free speech issues are at play. He set a hearing for Aug. 10.

Stein’s office didn’t respond to attempts to get further information about his stance in the case, which critics say is unprecedented, as it seeks to stop publication of material that has been publicly available for years.

“Josh is a politician, and he is serving in a public office. I have great respect for Josh, but I would disagree with him on this one,” Raleigh-based media lawyer Mark Prak, a seasoned defender of First Amendment issues, said Wednesday. He thinks Lasnik’s ruling was ill-advised.

“It’s fundamental that if the First Amendment means anything it means you can’t restrain speech” before it is made except in a few very narrowly defined circumstances, Prak said. “My sense is that that is ill-considered. It is probably one that is likely to be reversed when it is evaluated by an appellate court.”

He said the fundamental precepts of American constitutional law disfavor prior restraints on speech.

“When you’ve got somebody wanting to speak to the public, it’s pretty unusual for that speech to be restrained,” he said.

Prak said this case is no different than murder-for-hire publications, textbooks giving instructions for anti-social activities, or magazines and social media postings on how to build car bombs or pressure-cooker explosives.

While the speech is protected, “Anybody acting on it can be the subject of legal action for their behavior,” Prak said.

The Constitution’s Framers understood “it’s a social compact and understanding that we accept some speech that we may not like because to restrain it is a worse problem for freedom than to allow it,” Prak said.

“You can’t have it both ways. You either have freedom or you don’t,” he said.

Greg Wallace, a constitutional law professor at Campbell University School of Law, agreed.

“Defense Distributed’s case is about speech, not guns. Defense Distributed is not distributing guns, but rather information about making legal 3D-printed guns in the form of computer code,” Wallace said. “To stop the distribution of that information is a prior restraint on speech, and violates the First Amendment.”  

He said officials in anti-gun states judge-shopped to find someone to rule their way, and Lasnik quickly issued his order.

“What’s laughable about the judge’s order is that Defense Distributed’s plans for 3D-printed guns were released several days ago, and already are all over the internet,” Wallace said. “Moreover, there are multiple other online sources for files or blueprints for 3D-printed guns.”

He said the concerns about 3D-printed guns are overblown.

“As with other gun debate issues, most media stories and statements from anti-gun government officials show staggering ignorance of the basic facts surrounding 3D-printed guns. For these folks, facts don’t matter — it’s all about pushing a political narrative,” Wallace said.

“The Trump administration didn’t suddenly make 3D-printed guns legal,” Wallace said. It’s always been lawful for people to make 3D-printed guns at home, subject to federal laws prohibiting making guns that are undetectable by metal scanners. A federal license is required to make guns that are sold or distributed to others.

“Claims that Defense Distributed’s designs are invisible to metal detectors are false. Making any gun that is undetectable already is illegal under the federal Undetectable Firearms Act,” Wallace said. “There are a lot easier ways for criminals to get a gun — and a much better quality one — than by buying an expensive 3D printer, and printing a single-shot plastic gun at home.”

Jeff Powell, a law professor at Duke University, where he is director of its First Amendment Clinic, believes relevant provisions of the Undetectable Firearms Act making publication of blueprints illegal are constitutional.

“As a matter of the case law, I think the First Amendment argument is clearly unavailing under Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982),” said Powell, a former deputy assistant attorney general in the U.S. Department of Justice.

That case involved an ordinance passed by the Chicago suburb of Hoffman Estates requiring a license to sell marijuana bongs, pipes, and rolling papers, and banning advertising that promoted illegal activity. All eight Supreme Court justices who heard the case upheld the village ordinance.

“The Supreme Court has never limited Hoffman Estates, which considered the prior restraint issue … and so the decision binds the lower courts” on the blueprints issue, Powell said.  

“I would be surprised if the court actually rejected the principle at work in Hoffman Estates, and I don’t think it should,” Powell said.

It’s necessary to consider limitations on what is considered speech, he said.

“Since any human activity can be communicative, without such limitations all law would raise serious First Amendment questions,” Powell said. “Although the doctrinal technicalities differ, the court has always recognized the principle, and I think it would be right to apply it here.”

John Dinan, a political science professor and expert in state constitutional law at Wake Forest University, said the Defense Distributed case is complicated.  

“One of the more interesting aspects of the story, and this is illustrative of how so many of these contentious debates play out in the contemporary era, is that this issue is largely being fought out in federal courts rather than in Congress,” Dinan said.  

State attorneys general increasingly are playing a key role on everything from immigration to environmental policy. Plaintiffs in the Defense Distributed case filed lawsuits without success in federal district courts around the country in recent days before the Seattle judge issued his nationwide order.  

“Of course, Congress could get involved in resolving the issue,” Dinan said.  

“But in a polarized era with an evenly and deeply divided Congress, there is little expectation that Congress will act,” Dinan said. “As a result, all eyes turn to federal judges, and we are left to watch as cases about this issue move from federal district courts to circuit courts, and perhaps higher.”