WASHINGTON, May 8, 2015 – “I’m all in favor of keeping dangerous weapons out of the hands of fools,” quipped famed architect Frank Lloyd Wright. “Let’s start with typewriters.”
You can’t preserve freedom of speech without the freedom to back it up with force – the right to bear arms.
And in a twist made possible only through technology, two natural rights, free speech and the right to bear arms, have morphed into one.
Enter the Liberator: The world’s first 3D-printable handgun.
Cody Wilson, founder of Defense Distributed and creator of the Liberator, says his non-profit organization exists “to collaboratively produce, publish, and distribute to the public without charge information and knowledge related to the digital manufacture of arms.”
In other words, Wilson isn’t selling the Liberator. He’s giving away lines of code that users download and send to their 3D printers. Once printed, the parts are assembled into a .380 caliber shooter.
Here’s the question: are the words written in computer code protected by the First Amendment?
The U.S. State Department doesn’t think so, accusing Defense Distributed of violating the regulations of the Arms Export Control Act. In a May 2013 letter to Wilson, the State Department’s Bureau of Political-Military Affairs Office of Defense Trade Controls Compliance told the self-described “crypto-anarchist” to remove his code “from public access immediately.
“Defense Distributed should also review the remainder of the data made public on its website to determine whether any additional data may be similarly controlled.”
But the State Department demand sounds an awful lot like prior restraint, the banning of speech or other expressions of mind prior to release. Wilson’s attorney, Alan Guara, told Wired magazine that the State Department’s claim of jurisdiction over written words (code in this case) posted to the World Wide Web represents a “vast, unchecked seizure of power… not authorized by our constitution.”
In his lawsuit against the U.S. State Department, Wilson’s attorneys quote the 1963 Supreme Court’s Bantam Books, Inc., v. Sullivan ruling: ‘“Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.’ The prior restraint system challenged here cannot overcome its presumption of invalidity.”
In 2000, the 6th Circuit Court of Appeals ruled in Junger v. Daley that code is speech. The court said, “Source code, though unintelligible to many, is the preferred method of communication among computer programmers. Because computer source code is an expressive means of the exchange of information and ideas… we hold that it is protected by the First Amendment.”
And a decade later, Assistant Secretary of State Michael H. Posner told an audience at USC’s Annenberg Center, “The Obama administration has staked out a principled stand by arguing that the rights of free expression… apply to online activity just as they do to offline activity. Although it may be more difficult to enforce certain rights in the Digital Age… the principles are the same.”
And just a week ago, President Obama observed World Press Freedom Day, saying it was important for Americans to “speak out on behalf of the values that are enshrined in our Constitution and our Bill of Rights, because we believe those values are not simply American values, that certain core values like being able to express yourself and your conscience without danger is a human right, a universal right, and ultimately makes the world better and stronger.”
Benjamin Franklin said, “Those wretched countries, where a man cannot call his tongue his own, he can scarce call anything else his own.”
And what applies to the tongue certainly applies to the gun.
In his 2008 majority opinion in District of Columbia v. Heller, Supreme Court Justice Antonin Scalia wrote, “Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of the nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.”
If the courts cannot, under Heller, extinguish Cody Wilson’s natural right to bear arms, how can they declare his free speech rights, as Scalia reasoned, extinct?