Amicus Brief, Co-Authored by Leading Constitutional Scholar Laurence H. Tribe of Harvard Law School, Debunks Defense Distributed’s Flawed First Amendment Defense — a Theory That, if Accepted by the Courts, Would Seriously Undermine Gun Safety
NEW YORK – The Everytown for Gun Safety Support Fund, part of Everytown for Gun Safety, has filed an amicus brief with a Washington State federal court urging the court to continue to temporarily block the Trump Administration’s reckless decision to permit the online distribution of the computer code that, when input into a 3D printer, will automatically produce all the necessary components of an undetectable, untraceable plastic gun.
“Computer code that allows anyone — including convicted felons and domestic abusers — to automatically download and print undetectable guns is incredibly dangerous and undermines federal and state gun safety laws,” said Eric Tirschwell, Everytown’s director for litigation and national enforcement policy. “The brief we filed today forcefully debunks the argument that the First Amendment stands in the way of government regulation of these dangerous downloadable guns.”
The brief (available here) explains why Defense Distributed is wrong when it argues that the computer code it uses to create its downloadable guns is protected by the First Amendment, including the following points:
- Code for automatically creating guns is not a form of expression entitled to First Amendment protection because it is purely functional and operational in nature. Because the code “talks” directly to a 3-D printer, producing gun components without intercession by a human mind, the code is less like a book on gun-crafting (which is undoubtedly expressive) and more like a physical gun (which is not).
- Even assuming that the code has some expressive value, the First Amendment would not protect it because both its purpose and effect would be to cause the widespread violation of gun-safety laws. The code is thus integral to criminal conduct and, for that reason, categorically excluded from the First Amendment’s protection.
- If the First Amendment protects the code at all, it requires only an intermediate standard of review, and the injunction that the 20 state attorneys general request in order to continue to block the distribution of downloadable guns would easily meet that standard.
- The Ninth Circuit has already repeatedly upheld the constitutionality of the federal government’s restrictions on exporting technical weapons data such as Defense Distributed’s gun code here. Such restrictions, the court has explained, are merely incidental to the government’s undoubted authority to regulate the export of weapons.
This brief was prepared and submitted by the law firms Gupta Wessler PLLC and Terrell Marshall Law Group PLLC, Professor Laurence H. Tribe (the Carl M. Loeb University Professor and Professor of Constitutional Law at Harvard Law School) and Everytown’s Litigation Team.
The lawsuit, filed July 30 by Washington Attorney General Bob Ferguson and the attorneys general of twenty other states and the District of Columbia, is asking the court to bar the government from lifting its prohibitions on companies distributing computer code for downloadable guns.
The day after the suit was filed, the court issued a temporary, nationwide injunction to block the distribution of downloadable guns. The next hearing in the case is scheduled for Aug. 21. Following that hearing, the court will decide if the temporary injunction should remain in place for the duration of the case. More information about downloadable guns is available here.