SAF and Defense Distributed win Critical Fifth Circuit case on First Amendment and 3D Printing

On 19 August, 2020, the Fifth Circuit Court of Appeals reversed a Federal District court. The three judge panel of the Fith Circuit found the Attorney General of New Jersey is under Texas jurisdiction for this case. The case is Defense Distributed v. Grewal. 

The finding allows a lawsuit filed against the New Jersey AG for violation of Defense Distributed First Amendment rights to publish computer code for 3D printed guns, to go forward.

Presumably, discovery of Grewal’s records on any discussion relevant to stopping Defense Distributed from publishing will be allowed to continue.

AG Grewal can ask for a en blanc hearing at the Fifth circuit. Failing that, he can appeal the ruling of the three judge panel to the Supreme Court. 

The ruling is a highly technical discussion about whether Grewal’s conduct is sufficient to generate jurisdiction in Texas. All three judges agree that it is.

The dissent argues that Grewal, as an Attorney General, should be exempt from being sued in such a case. 

The case will continue. 

With the resources of the State of New Jersey at his command, it is expected AG Grewal will use every opportunity to delay and derail this case. 

There will probably be a request for an en banc ruling; 

It will probably be denied and the case will be appealed to the Supreme Court. 

That will buy another years delay for Grewal in his scheme to deny Defense Distributed  First Amendment rights. 

A presidential election will take place before then. 

 If President Trump wins, Grewal’s scheme will likely fail. AG Grewal has consistently worked to stop the settlement which was hammered out between the Trump Administration and Defense Distributed.

If President Trump loses, a Biden-Harris administration will do everything they can to reinforce Grewal in his bid to stop Defense Distributed from exercising their First Amendment rights.  A Biden-Harris administration will stop the settlement from going into effect, if it has not already been put in place.

The Fifth Circuit is saying AG Grewal of New Jersey may be personally liable for attacking the First Amendment rights of Defense Distributed. 

It is an important finding. We will not know the results before the election, but the results may be of great significance for the nation.

Here is a timeline of Defense Distributed attempt to exercise its rights:

3 May, 2013, Defense Distributed plans to releases 3D printer firearm code on the Internet.   DD releases the plans on 5 May.

9 May, 2013, State Department orders Defense Distributed distribution of 3D printer files on firearms to stop.

 6 May, 2015, SAF and Defense Distributed bring suit against the State Departement for violating First, Second and Fifth Amendment rights.

10 July, 2018, SAF and Defense Distributed reach settlement with Department of Justice, to allow publishing of 3D printed firearms code.

31 July, 2018, Defense Distributed and SAF sue  New Jersey AG Grewal and the Los Angeles City Attorney.

 27 August, 2018, Senior Judge Lasnik comes out of retirement to issue injunction against settlement of Defense Distributed First Amendment lawsuit against the State Department.

12 November, 2019, Judge Lasnik rules Department of State violated administrative procedure.

 January, 2020 Lawsuit filed to stop settlement between Defense Distributed and State Department, Department of Commerce, with Senior Judge Lasnik

The precedent for the protection of computer code as a freedom of speech issue is fairly clear, established in the encryption debates in 1995, in the Ninth Circuit.

The Supreme Court has not directly ruled on the issue. At some point, a Supreme Court ruling is almost sure to happen. 

You cannot stop people from obtaining guns unless you stop them from having the information on how to make guns.

The First Amendment says the government is not allowed to do that.

©2020 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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