In 2012, Defense Distributed, a non-profit organization, began posting online free downloads of computer files — codes — that would enable users to easily produce their own firearms and firearm components with 3D printers. In May 2013, the State Department informed Defense Distributed that sharing these files in this particular manner violated provisions of the Arms Export Control Act.
And just like that, 3D-printed guns became a free-speech issue wrapped up in all the societal trappings of a Second Amendment debate.
In short, the underlying dispute was one of interpretation: Were the codes for 3D-printed guns “technical data” for purposes of the United States Munitions List, and did making them available for international download constitute “exportation” of that regulated technical data? Defense Distributed argued that the codes weren’t regulated technical data, and that even if they were, the prohibition on publishing them was an unconstitutional prior restraint on speech.
At no point did anyone question the legality of manufacturing firearms for personal use, whether with a 3D printer or through other means.
In fact, after spending multiple paragraphs discussing the process of 3D printing firearms, the Fifth Circuit very clearly stated: “Everything discussed above is legal for United States citizens and will remain legal for United States citizens regardless of the outcome of this case.”
While the government has since reached a settlement agreement with Defense Distributed — a settlement some states have filed their own lawsuit to stop — it’s important to understand the reality of the initial lawsuit. This was, is and will continue to be a question of speech, and whether and when the government can prohibit speech about how to conduct a lawful activity.
The right to free speech protects far more than mere words. At its core is the guarantee that the government may not punish or prohibit the free dissemination of information, the expression of ideas, or the use of certain modes of communication. As the U.S. Supreme Court explained in Texas v. Johnson, the First Amendment protects both literal and symbolic speech. As long as the speaker intended to convey a particular message and that message is likely to be understood by those who view it, then it is speech.
But, arguably, computer code is pure speech.
Code is simply information translated into a language for computers. Like human languages, the “languages” of code are diverse. They exist in many different families and styles, but all of them are capable of expressing the same ideas in different ways. The information is not depicted as words, nor does it necessarily exist in a physical, tangible format.
It is, rather, a sequence of symbols that form an instruction for a computer, which the computer then executes. In so many words, code is the way in which humans communicate with the computer, but this communication can also be read and understood by humans who “speak” the particular code. And in this sense, the code itself is “speech” that conveys information which can readily be interpreted by computers or humans.
On its face, it would seem that if Defense Distributed published a how-to pamphlet on 3D printing firearms, and included in that pamphlet the literal step-by-step code sequencing for the reader to manually plug into the computer, it would be protected speech. What, then, is the practical difference between skipping this step and allowing the downloader to directly input the code without reading it?
There isn’t one.
The Supreme Court hasn’t directly addressed the issue, but there is relative unanimity among lower federal courts that code is speech, despite their sometimes inconsistent approaches to the question.
Even if the code itself isn’t “speech” for First Amendment purposes, the act of publishing that “non-speech” on the internet for inherently political purposes is speech. As the Supreme Court noted in Texas v. Johnson, the First Amendment’s “protection does not end at the spoken or written word,” and conduct may be “sufficiently imbued with elements of communication to fall within the scope of the First Amendment.”
In confronting the prohibition of the expression of an idea through activity, the Supreme Court in Spence v. Washington gave heavy weight to the context in which the conduct occurred, noting that “it would have been difficult for the great majority of Americans to miss the drift of Appellant’s point at the time he made it.” Further, the conduct was not “an act of mindless nihilism,” but a “pointed expression” that clearly indicated an intent to convey a particular message in circumstances where there was a great likelihood the message would be understood.
Defense Distributed conveys one unified, consistent message. The company exists, in its own words, “for the purpose of promoting popular access to arms guaranteed by the United States Constitution” by “facilitating global access to, and the collaborative production of, information and knowledge related to the 3D printing of arms; and by publishing and distributing such information and knowledge on the Internet at no cost to the public.”
Put another way, Defense Distributed considers its publication of these materials to be part of its broader message about the protection and exercise of a constitutional right to keep and bear arms. And, unlike some inherently political messages — those advocating terrorism or the making of chemical weapons, for example — the underlying activity with which the speech is concerned is perfectly legal.
This message also exists in a societal context of prominent, heated debates over the purpose and place of the Second Amendment, including highly publicized mass demonstrations aimed at the imposition of measures to curb civilian gun possession in the United States.
The publication of these codes is not in a vacuum, and the receiver of the message is likely to understand the organization’s stated message — that the Second Amendment is a vital constitutional protection, and here is information on how you can better exercise your Second Amendment rights.
There are, of course, several exceptions to the general rule against prior restraints on speech, including national security concerns. There are also a variety of ways the Supreme Court could choose to understand the publication of code in a First Amendment context, all of which implicate different tests with varying measures of deference to the government’s stated interests.
But, ultimately, it’s important to understand what this 3D-printed gun case was really about — the circumstances under which the government may prohibit speech about an otherwise lawful activity. If the equation comes out differently just because the speech deals with the Second Amendment, it’s time for us to reconsider whether we really value the First.
This piece originally appeared in The Hill on August 7, 2018