World of Warcraft: The First Amendment and downloadable weaponry
By Kyle Langvardt
3d printing, for those who have not followed the story, is a technology that allows the user to create a solid three-dimensional object from a digital model. The 3d printer itself resembles in some respects an ordinary inkjet printer. But while an inkjet printer extrudes ink onto a flat page to form two-dimensional shapes — text, pictures, and so on — a 3d printer extrudes plastic, building layer upon layer until a fully three-dimensional object has been built.
In January’s State of the Union address, President Obama hyped 3d printing technology as having “the potential to revolutionize the way we make almost everything.” The hype is well-deserved. Over the last twenty years, we have come to rely on the Internet for instant access to more and more things we would once have had to run into town to pick up: mail; research; music; movies. 3d printing means that certain physical objects are about to join that category. Even today, you can download salt-and-pepper shakers, for instance, from a website called thingiverse.com
Or, if you are interested in downloading a deadly weapon, you can download the Defcad Mega Pack 4.4 from a site called kickasstorrents.com. No kidding. This is a 400 Mb zipped file containing CAD models for 3D-printable Uzi clips, rifles, six-shooters, and more. And though none of these are top-of-the line weapons — one such rifle, the “Grizzly 2.0,” was heralded as a great success by 3d-printed gun standards when it successfully fired fourteen rounds without blowing up — they do have the “advantage” of a plastic construction that makes them invisible to metal detectors.
An even bigger “advantage” of these weapons is that they can be downloaded and printed completely outside of the reach of American and international gun regulations. And for Cody Wilson, the University of Texas law student who designed the first 3d-printable gun, this is the point.
He named the first fully 3d-printable gun the Liberator after a gun built for resistance fighters in World War II. Just as the first Liberator was designed to terrify Axis occupiers, Wilson says, he designed his Liberator to shake the morale of the whole gun-control movement by demonstrating its futility against the Internet.
Wilson seems to have succeeded in making his point. Just a few days after Wilson’s organization Defense Distributed posted the files for the Liberator on the web, the State Department ordered them taken down on the theory that they amounted to an unauthorized weapons export. But the gesture accomplished nothing. Over a hundred thousand people had already downloaded the Liberator, and it is available today on various international mirror sites such as The Pirate Bay. It is similarly hard to see the practical result of New York Congressman Steve Israel’s proposal to ban all 3d-printed plastic gun components: how can such a law possibly be enforced?
Whether these laws can prevent the proliferation of 3d-printed guns or not, they are sure to provoke First and Second Amendment litigation.
Speech rights and gun rights alike are implicated. Perhaps tellingly, the State Department’s takedown order to Cody Wilson cited export restrictions on “defense articles” and “related technical data” without indicating which of the two the Liberator’s digital model actually was. After all, the files are in some sense “instructional speech” that tell a user how to build a weapon. On this view, the Defcad Mega Pack 4.4 is just the latest variation on The Anarchist’s Cookbook and other speech offering instruction in violence. Yet on another view, the Liberator’s CAD model is, itself, a lethal “defense article.” Once you have the file, it is just a matter of clicking “print” and you have a gun.
Neither First Amendment nor Second Amendment case law offers much of a framework for the 3d-printed gun issue. The law of the Second Amendment is still in an early stage of its development. With only two reasonably contemporary decisions on record, the Supreme Court has described as “fundamental” the right to bear arms “typically possessed by law abiding citizens for lawful purposes.” The Court has also described “longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms” as “presumptively lawful.” But it has not yet outlined what sort of balancing test underlies that “presumption.”
Nor is there much First Amendment case law on point. Would-be regulators of violent speech often rely on the U.S. v. Brandenburg doctrine, which denies First Amendment protection to words directed to inciting “imminent lawless action.” In Rice v. Wilson, the Fourth Circuit took Brandenburg to mean that the publishers of Hit Man, an instruction manual for contract killing, were not immune from an aiding-and-abetting suit by the relatives of murder victims. Yet 3D-printable gun designs do not obviously fall within the rationale behind Rice; unlike Hit Man, which the Fourth Circuit understood as a simple incitement to violence and nothing more, 3d-printable gun designs could facilitate a good deal of lawful conduct that is likely constitutionally protected under the Supreme Court’s Second Amendment jurisprudence.
Moreover, Rice v. Wilson dealt with an after-the-fact civil suit. Gun-control measures such as the State Department’s order to take down the Liberator, on the other hand, amount to a prior restraint against speech, and are thus far more difficult to defend. The closest available court opinion authorizing a prior restraint against publication of a weapons plan is U.S. v. Progressive, a case mooted shortly after the Eastern District of Wisconsin decided it. But in that case, the plan was for a hydrogen bomb, not a handgun. Progressive offers little insight into the law of the Liberator.
Similarly cryptic is the law’s jurisprudence on the First Amendment status of software. Scholars seem generally to agree that software is, for most purposes, speech. Courts, on the other hand, have mostly confronted the question in the context of export controls over cryptographic software, and have reached divided results. No court has yet addressed the First Amendment status of 3d-printable designs.
To sum up, the First and Second Amendment questions are wide open. As for the Second Amendment, we can fairly expect that some sort of balancing test is coming; we just don’t know what it is yet. The First Amendment issues, on the other hand, are more profound. The most straightforward take would be to apply some sort of either intermediate or strict scrutiny, depending on whether a restriction on digital gun models was taken as content-neutral or content-based. Everything would in that case come down to two factors: 1) the weight and the constitutional legitimacy of the government’s interest in regulating gun ownership; and 2) the precision of the government’s means. This is the sort of approach that characterizes most of the law on free speech. But any such approach begs a larger question: if 3d printing and its successor technologies succeed in “revolutioniz[ing] the way we make almost everything,” eventually blurring the line between digital information and physical reality, should the freedom of information be allowed to develop into a freedom of “almost everything?”
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Kyle Langvardt joined the UDM faculty in Fall 2012. Before UDM Law he was a Lecturer in Business Law and Ethics at Indiana University, Bloomington. Prior to that he was an Associate with Locke, Lord, Bissell & Liddell in Chicago. Professor Langvardt’s research interests include free speech and election law.
