The case, Defense Distributed v. United States Dep't of State, 838 F.3d 451 (5th Cir. 2016), involves a nonprofit organization that publicly posted online its 3D printing computer aided design (CAD) files for guns, including its flagship gun “The Liberator,” enabling any user with a 3D printer to privately manufacture a functional gun with the click of a mouse. After posting the CAD files, Defense Distributed received a takedown notice from the U.S. Department of State, requiring it to remove the files and seek International Traffic in Arms Regulations (ITAR) pre-approval before re-posting. The organization sought a preliminary injunction, arguing that the government action violated its constitutional rights, including its right to free speech. Denying the injunction, the U.S. District Court for the Western District of Texas and the U.S. Court of Appeals for the Fifth Circuit found that the public interest in national security outweighed the potential harms to Defense Distributed.
As the Fifth Circuit noted, Defense Distributed presents “a number of novel legal questions,” including whether CAD files constitute free speech and whether the ITAR pre-approval requirement is an unconstitutional prior restraint. Wilbanks said, if it ever were to receive the Supreme Court scrutiny, the case would be one in which “new 3-D printing technology [could] test the limits of free speech.”
The Fifth Circuit decision can be found here.
The Bloomberg Law article can be read in its entirety here.