Defense Distributed v. United States Department of State
2016 U.S. App. LEXIS 17200
| 5th Cir. | 2016Background
- Plaintiffs Defense Distributed and Second Amendment Foundation develop and seek to publish CAD/CNC files and 3D-printing instructions that can produce firearm parts (notably AR‑15 lower receivers and the "Liberator" pistol).
- In 2013 the State Department (DDTC) warned that posting such unclassified technical data online may constitute an "export" under the AECA/ITAR and required prepublication approval; plaintiffs removed the files and later sought commodity‑jurisdiction rulings.
- Plaintiffs sued seeking to enjoin ITAR’s prepublication/licensing requirement as an unconstitutional prior restraint and content‑based regulation of speech, and also raised Second and Fifth Amendment claims.
- The district court denied a preliminary injunction, finding plaintiffs met irreparable‑harm but failed the balance‑of‑harms and public‑interest prongs; it also wrote extensive dicta on the merits.
- The Fifth Circuit affirmed, holding the district court did not abuse its discretion in weighing the government’s strong national‑security interest against plaintiffs’ First Amendment interests and in denying preliminary relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether posting unclassified technical CAD/CNC files online is an "export" subject to AECA/ITAR | Internet publication is domestic publication, not an "export"; AECA doesn’t cover non‑transactional domestic posting | ITAR defines export to include disclosure to foreign persons (including via the Internet); posting online is an export requiring DDTC approval | Court did not decide merits; for PI analysis it credited government’s national‑security interest and treated DDTC’s export theory as weighty enough to deny injunctive relief |
| Whether ITAR as applied is a content‑based restriction on protected speech requiring strict scrutiny | Files are protected First Amendment speech; the scheme is content‑based, overbroad, and a prior restraint | Regulation targets export conduct and national security, not viewpoint; it is a permissible regulation of technical data tied to defense articles | Majority avoided merits; dissent argued strict scrutiny and that ITAR likely fails First Amendment protections |
| Whether the prepublication/licensing scheme constitutes an unconstitutional prior restraint (procedural safeguards and unbridled discretion) | DDTC’s case‑by‑case licensing and slow commodity‑jurisdiction process amount to unbridled discretion and lack prompt judicial review | Government points to national security and statutory scheme authorizing export controls and licensing discretion | Majority did not resolve prior‑restraint claim; dissent concluded procedural defects and judicial‑review limitations make the scheme suspect |
| Whether plaintiffs were entitled to a preliminary injunction (four‑factor test) | Strong First Amendment injury (irreparable); likely to succeed on merits; public‑interest favors injunction | Granting PI would allow worldwide, irreversible dissemination of files and permanently harm national security/public interest | Court affirmed denial of PI: plaintiffs showed irreparable harm but failed to show balance of harms and public interest favored them |
Key Cases Cited
- United States v. Zhen Zhou Wu, 711 F.3d 1 (1st Cir.) (explaining USML categories describe attributes rather than specific items)
- United States v. Pulungan, 569 F.3d 326 (7th Cir.) (discussing breadth of Munitions List categories)
- Winter v. Natural Res. Def. Council, 555 U.S. 7 (2008) (preliminary‑injunction public‑interest and balance‑of‑harms framework)
- Haig v. Agee, 453 U.S. 280 (1981) (deference to political branches in foreign affairs/national‑security matters)
- Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) (content‑based regulation and strict‑scrutiny principle)
- Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) (speech‑related restrictions judged under strict scrutiny where content‑based)
- New York Times Co. v. United States, 403 U.S. 713 (1971) (prior restraint and heavy presumption against prior censorship)
- Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931) (historical limits on prior restraints)
- City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750 (1988) (invalidating licensing schemes that confer unbridled discretion)
- Southern Monorail Co. v. Robbins & Myers, 666 F.2d 185 (5th Cir.) (preliminary‑injunction factors and balancing approach)