This week, a district court judge in the Western District of Washington in Seattle will once again determine the fate of a set of blueprints for 3D-printed guns produced by Defense Distributed, a private Texas-based company.

After granting a temporary restraining order last month, which prevented release of the blueprints online, Judge Robert Lasnik on Tuesday will preside over a potentially more binding preliminary injunction hearing. Washington Attorney General Bob Ferguson is spearheading the multi-party lawsuit, which involves 18 other states including Colorado.

In joining the suit on August 6, Colorado Attorney General Cynthia Coffman released the following statement: “I am a strong believer in the constitutional rights protected under the First and Second Amendments. But this proposed settlement would allow unfettered access to firearms blueprints, which could be used to create working, deadly weapons by those who wish to cause great harm, including criminals and terrorists. Because 3D-printed firearms have few metal parts, can be acquired without a background check, and are virtually untraceable, printable firearms pose a unique security risk.”

The origin of this fight stretches back several years into the presidency of Barack Obama. Back then, the owner of Defense Distributed, Cody Wilson, intended to release computer-aided design files that would have allowed anyone with a commercially available 3D printer to make guns such as a pistol known as the “Liberator” and frames for an AR-15 semi-automatic rifle. During Obama’s presidency, the State Department sued to block Wilson from posting the CAD files by including the files on the United States Munitions List, making them subject to violations under International Traffic and Arms Regulations.

According to the most recent multistate lawsuit, “As recently as April of this year, the Government’s position was that if such CAD files were distributed via the internet, they could be ‘easily used overseas to make firearms that are subject to U.S. export controls,’ where, ‘beyond the reach of U.S. law, they could be used to threaten U.S. national security, foreign policy interests or international peace and stability.”

Wilson argued his First and Second Amendment rights to free speech and to bear arms allowed him to release these files.

The lawsuit proceeded comparatively quietly for several years until the Trump administration somewhat abruptly settled the case in June. In July, the New York Times reported the settlement allowed Wilson the freedom to publish his files in any form beginning Aug. 1 and included an agreement on the government’s part to pay $40,000 of Wilson’s legal fees. That’s when Washington and the other states stepped in, attempting to block the Aug. 1 release by arguing on more technical grounds. The lawsuit claims the settlement violated the Administrative Procedure Act because the state department failed to notify Congress of the changes.

Regina Drexler, of counsel at Ireland Stapleton Pryor & Pascoe, said the suit being handled by the Washington State attorney general is both an important and fascinating one. “A lot people are interested in it, and it raises some really complex and interesting questions,” said Drexler, who provides counsel on, among other things, questions of intellectual property. “There are greater implications than just the cease and desist.”

Neither the original case out of Texas — which was settled prior to determining the merits of the case — or the subsequent Washington State case have addressed what seems to be the most pressing question among the public: Is sharing these blueprints online protected by the First Amendment? “The case as it’s being discussed generally at the water cooler, even in the media, is as a first amendment case on the merits, and it’s not there yet,” Drexler said. “It’s interesting, the case that’s being litigated now is really about the Administrative Procedures Act, not the First Amendment; no one has decided anything about the First Amendment.”

Drexler said she thinks the First Amendment argument, if and when the legal system ever reaches the point of discussing it, is a rather strong one in favor of Defense Distributed. “You can regulate the guns that are produced — that’s the argument that the gun control people are making,” she said. “The legal issue here is that they’re trying to get to the regulation of the product by restricting the expression of the design of those products. That’s sort of where the problem comes in.”

Drexler noted one particular court filing generated in the two cases thus far that does weigh in on the First Amendment question: A lengthy dissent issued by Judge Edith Jones of the U.S. Court of Appeals for the 5th Circuit. In her dissent Jones writes: “This case poses starkly the question of the national government’s power to impose a prior restraint on the publication of lawful, unclassified, not-otherwise-restricted technical data to the Internet under the guise of regulating the ‘export’ of ‘defense articles.’ I dissent from this court’s failure to treat the issues raised before us with the seriousness that direct abridgements of free speech demand.”

Jones wrote that the State Department had not “sought enforcement against the posting of any kind of files on the internet” in the nearly 40-year history of munitions “export” controls. She then went on to make several arguments, including, in her view, that the government had clearly violated the First Amendment’s content-based speech restriction. “The State Department barely disputes that computer-related files and other technical data are speech protected by the First Amendment. … There are CAD files on the Internet and designs, drawings, and technical information about myriad items — jewelry, kitchen supplies, model airplanes, or clothing, for example — that are of no interest to the State Department.

Only because Defense Distributed posted technical data referring to firearms covered generically by the USML does the government purport to require prepublication approval or licensing. This is pure content-based regulation.”

Jones went on: “The government’s argument that its regulatory scheme is content-neutral because it is focused on curbing harmful secondary effects rather than Defense Distributed’s primary speech is unpersuasive.”

In discussing the case, Drexler noted another past example that came to mind: encryption software. Years ago, during the Clinton administration, the government attempted to prohibit the software code from being distributed by placing it on the Munitions List.

A lower court ruled in favor of distribution on First Amendment grounds; however, no final decision was reached because the government also pursued a remedy via regulatory routes.

Bottom line, Drexler said, “Is there a way to protect our society from the dangers without encroaching on free expression?”

To read this story and other complete articles featured in the August 20, 2018 print edition of Law Week Colorado, copies are available for purchase online.