3-D plastic guns: How the political script has flipped on First Amendment

Earlier this summer, when the United States Department of Justice quietly settled a long-standing free-speech lawsuit brought by the Texas coder Cody Wilson, many gun rights groups hailed the decision as the beginning of the end for gun control.

In an era of powerful 3D printing, digital technology has made it possible to construct virtually undetectable plastic guns that could be made relatively simply in the privacy of home. The result, say Mr. Wilson and others, could be an unstoppable “disintermediating the State” since such weapons are without manufacturer markings and serial numbers and can remain outside the reach of state bureaucracies and various restrictive gun laws.

Yet the prospect of such stealthy, 3D-printable “ghost guns,” as detractors call them, has laid bare yet another cultural challenge to the concept of freedom of speech and the free flow of information, many scholars say.

In some ways, the advent of printable guns has reversed certain political scripts. Democrats and many liberals are using old states rights arguments to push the need for law and order. By contrast, many conservative libertarians – some of whom, like Mr. Wilson, embrace aspects of the term “anarchist” – have championed classic liberal ideas of free speech: a robust, rough-and-ready free flow of information, competing in the marketplace of ideas.

“The real story is that this is not a cut and dried issue,” says Aram Sinnreich, chairman of the Communication Studies division at American University in Washington. “I care very personally, as a human being and as a citizen, I care very deeply about about gun control.”

“But I also care very deeply about free speech on the internet,” he continues. “And I'm torn on this subject. I don't know what the right answer is.”  One thing is certain, he says: There are profound risks to regulating ideas.

Question of 'prior restraint'

In 2013, Mr. Wilson successfully developed the digital blueprints for a simple one-shot plastic pistol he called the “Liberator” and posted them to his website. It didn’t take long for the Obama administration to shut the site down, ruling that the information he was providing violated federal regulations.

But Wilson, and his attorneys, called this an illegal “prior restraint” of his First Amendment rights. And earlier this summer the Justice department agreed, paying most of his legal fees, his attorneys said, and settled the case.

“Not only is this a First Amendment victory for free speech, it also is a devastating blow to the gun prohibition lobby,” said Alan Gottlieb, founder of Second Amendment Foundation, a Washington state based gun rights group that defended Wilson in court, in a statement.

The flipping of the script comes, Democrats say, amid the instant global reach of potentially dangerous information. Some even call for restrictions on certain forms of speech.

“As a result of the Department of State’s settlement with [Wilson], terrorists, criminals, and individuals seeking to do harm would have unfettered access to print and manufacture dangerous firearms,” wrote 21 states attorneys general, most from Democratic states, in a letter to the Trump administration on Monday. “Some of these weapons may even be undetectable by magnetometers in places like airports and government buildings and untraceable by law enforcement.”

Among these, attorneys general in eight states filed a lawsuit challenging the settlement, and on Tuesday a federal judge in Seattle temporarily blocked Wilson from reposting the repository of an assortment of digital codes for 3D-printable plastic guns.

“It’s not that I’m a nihilist about it,” Wilson told The Washington Post in July. He said he knew the information he was providing could be used for radical purposes. But free speech remains a bedrock principle of liberty in the public domain, and the government cannot “violate” his coding or his ideas. His digital blueprints were “equally everyone’s and no one’s,” he said.

It’s an idea that many political liberals have also long espoused.

“Should [Internet Service Providers] be policing every 1 and every 0 that travels along their networks and screen out 3D printed guns?” Professor Sinnreich says. “Well, that's essentially what ISPs do in China. But what they're screening out is words like democracy. So do we really want, at this point in our political development, to empower the internet infrastructure to make those discriminatory choices on our behalf?”

At the same time, many liberal critics have noted that freedom of speech arguments have become a conservative cudgel against the regulatory power of the state on a number of fronts.

This year the Supreme Court’s conservatives used First Amendment freedom of speech arguments to ban compulsory union dues and reject a California law that required pregnancy centers to provide information about abortion. Religious liberty advocates and wedding vendors have begun to use freedom of speech principles to opt out of providing service for same-sex couples, arguing that their artistic expressions are protected forms of speech that may not be coerced.

In 2010, the high court’s conservative majority used the First Amendment to throw out restrictions on unlimited campaign contributions by corporations and unions.

Justice Elena Kagan characterized this conservative use of free speech principles as a “weaponizing of the First Amendment.”

“Speech is everywhere — a part of every human activity (employment, health care, securities trading, you name it),” she wrote in her dissent to the June decision that gutted long-established laws governing union dues. “For that reason, almost all economic and regulatory policy affects or touches speech. So the majority’s road runs long. And at every stop are black-robed rulers overriding citizens’ choices.”

Technology outpacing the law

Still, in the case of the kind of digital information providing the codes for 3D-printable plastic guns, a number of scholars believe existing laws and regulations can fit the free speech challenges posed.

“We’ve always distinguished between laws that deal with the distribution of information and laws that deal with what you do with that information,” says Jonathan Adler, a law professor and director of the Center for Business Law and Regulation at at the Case Western Reserve University School of Law in Ohio.

“These 3D printers are kind of new, and any time we get a new technology, it’s understandable that we, because of our lack of familiarity, we really don’t think about how to actually get technologies into the legal categories we already have,” he continues.

And courts have long accommodated the free flow of information – take “The Anarchist Cookbook,” still sold in retail outlets such as Amazon, which similarly contains information on preparing weapons and explosives at home, as well as various types of drugs.

Both liberal and conservative justices have used the First Amendment to protect images of animal cruelty, violent video games, and other disturbing content.  

Federal court decisions, too, have long established that disseminating certain kinds of information, including digital code in general, is protected speech, notes Erica Goldberg, a First Amendment expert at the University of Dayton School of Law in Ohio. “The sharing of computer code with others to communicate ideas or functionality is protected speech – although the actual printing of the gun can be criminalized,” she says.

Indeed, many point out that federal laws such as the Undetectable Firearms Act still prohibits owning plastic guns, or any weapon designed to avoid detection. Wilson is only providing blueprints for guns that are already legal, advocates say.

“It’s very easy to lose sight of the fact that again there are core values of political speech where we want to tolerate the broadest possible dissemination of ideas,” says Saul Cornell, professor of American history at Fordham University in New York and the author of “A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America.” But there are a lot of areas that are at a very minimum gray, and then there are some areas that actually there are competing values.”

Information about weapons of mass destruction or digital codes for military grade weapons would not be protected, Professor Cornell says. And child pornography is always prohibited.

But there remains the possibility that governments and ISPs may be able to do very little to stop such information. “The enforcement problem for the government is that it is near impossible to go after individuals who print the gun code because they are diffuse and undetectable,” says Professor Goldberg. “So the state governments would rather be able to go after the organization or individual who is allowing everyone to access the code.”

Still, a court could rule that speech restrictions are permitted if they serve “a compelling government interest,” she says. “Here, public safety might be a compelling enough interest to restrict speech, but this type of strict constitutional scrutiny is not often satisfied when speech is involved – in order to maintain our robust speech protections.”

Such free speech questions surrounding the digital blueprints for 3D-printable plastic guns are part of a discussion the nation has been having from the start, says Sinnreich: “It's the same argument we've been having since the founding of this country, which is, do you privilege liberty over security, or security over liberty?”

“It’s a question of calculating the net benefit for society,” he continues. “For everything that you gain in this fight, you lose something too. For every 3D printed gun that you stop or intercept, you’re going to be impinging on the privacy and free speech of a million other people. So how do we make those calculations?”