Barry P. McDonald is a professor of constitutional law at Pepperdine University and a former law clerk to Chief Justice William H. Rehnquist.
Last week, a federal judge in Seattle effectively blocked a pro-gun group from publishing computer-code blueprints that could be used to make guns with 3-D printers — at least until further hearings can be held. The restraining order will please lawmakers and gun-control advocates who have been up in arms following the Trump administration’s decision to let the group publish the instructions.
But those who oppose these weapons shouldn’t be celebrating. A government ban on publishing such blueprints is going to be difficult to sustain — and that’s probably as it should be. As one court put it in 2001: “Communication does not lose constitutional protection as ‘speech’ simply because it is expressed in the language of computer code.”
Various forms of “instructional speech,” including computer code that provides directions to both humans and machines, are extremely commonplace and can frequently be used for both good and ill. For instance, directions for enriching uranium can be used to make nuclear energy or to make nuclear bombs. It’s likely that the pro-gun group also thinks its instructions will do more good than harm — hence its name, Defense Distributed.
The most extreme cases, such as instructions for weapons that could endanger national security, particularly if exported abroad, would warrant government action. But the Trump administration represented to the Seattle court that 3-D-printed guns don’t present such a threat and, in most cases, I doubt that federal judges — or even politicians — are equipped to determine what sorts of instructional speech will cause sufficient harm for suppression.
Skepticism that government officials can accurately balance the good and ill effects of speech is properly reflected in the Supreme Court’s free speech rulings. While the court has never addressed what protection is reserved for potentially harmful instructional speech, it has only recognized a few narrow categories of speech that can be restricted on the basis of harm, such as inciting immediate acts of violence.
Moreover, the court recently said it will refuse to recognize any new proscribable categories of speech unless it can be proved they never enjoyed First Amendment protection. This effectively means that the government would likely face an extremely heavy burden of showing that a ban on instructions for 3-D-printed guns was necessary to avert harm.
The court has also long stated that efforts to ban speech before it occurs, as state lawyers are effectively trying to achieve by having the dissemination of the blueprints blocked, are nearly impossible to sustain. (Think of the famous case, recently depicted in the movie “The Post,” in which the government lost its bid to prohibit the publication of the Pentagon Papers.) While the punishment of speech after it occurs might be acceptable in some circumstances, the government has no business effectively granting licenses as to what can or cannot be said.
Given this landscape, then, can the government do anything to prevent the publication of instructions for printing 3-D guns? Probably not, and this is likely the right answer. Even if one were comfortable entrusting government officials with the power to decide which instructional speech warranted suppression, it seems implausible that legal action could effectively prevent the dissemination of 3-D-printed gun instructions in cyberspace. Information, like water, has a way of seeping out.
For instance, in a notable case from 1979, the government actually did bar the publication of a magazine article containing instructions for making a nuclear bomb. The court reasoned that “one cannot enjoy freedom of speech . . . unless one first enjoys the freedom to live.” Yet, on appeal, the government abandoned its efforts to defend that ruling when information contained in the article was published by other media outlets. And like with the publication of the Pentagon Papers, no calamity resulted — indicating that claims of harm from allegedly dangerous speech are often overblown.
So is there nothing the government can do about 3-D-printable guns? Of course there is. It can regulate the conduct it is concerned about rather than speech that facilitates it. Indeed, the state of New York seems to be going this route, with legislators announcing a bill that would require printable-gun makers to register their guns and be licensed.
Whether such an approach might run into Second Amendment issues — as advocates from Defense Distributed might argue — is an open question, given the 2008 decision from the Supreme Court that recognized a personal right to own guns for self-defense (and, in a related case, called the right “fundamental”). But, perhaps realizing the can of worms these rulings may have opened (or exacerbated), the court has since exhibited a reluctance to consider claims that lower courts are improperly upholding gun regulations.
And so the most promising route to control any harmful effects of 3-D-printed guns would be to go after the weapons themselves, not the instructions on how to make them. Anyone alarmed at the prospect of granting the government officials broad power to decide what speech is too dangerous for publication should agree.