865 F.3d 211
5th Cir.2017Background
- Defense Distributed challenged a government restriction on online publication of firearms design files; the panel granted a preliminary injunction issue at stake.
- A panel opinion (majority) upheld a prior restraint based on asserted national security interests and characterized any harm to Defense Distributed as temporary.
- Judge Jones authored a detailed panel dissent (cited by the dissent from denial of rehearing en banc). Judge Elrod joined that dissent and wrote separately to seek en banc review.
- Elrod’s dissent argues the panel failed to assess likelihood of success on the merits, treated a bare national-security assertion as sufficient justification for a prior restraint, and misapplied irreparable-harm doctrine.
- The en banc petition was denied: five judges voted for rehearing and nine against; Judge Elrod (joined by three others) formally dissented from the denial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether likelihood of success on the merits must be analyzed before issuing a First Amendment preliminary injunction | Defense Distributed: likelihood of success is indispensable and must be evaluated | Government: panel did not address this as essential in its preliminary-injunction calculus | Panel opinion failed to analyze likelihood of success; dissent says that omission creates a circuit split and warrants en banc review |
| Whether a mere assertion of national security can justify a content-based prior restraint | Defense Distributed: government must meet heavy burden—show direct, immediate, irreparable harm and no alternatives | Government: national-security interests asserted as strong public interest supporting the restraint | Dissent: mere assertion of national security is insufficient; requires specific, imminent harm and no alternatives; panel improperly accepted generalized national-security claim |
| Whether temporary deprivation of speech defeats a finding of irreparable harm | Defense Distributed: any loss of First Amendment rights, even briefly, is irreparable | Government: harm to plaintiff is temporary, so not irreparable | Dissent: constitutional injury is irreparable per Elrod; here the restraint has lasted years, so harm is substantial |
| Whether the public interest supports the prior restraint without merits analysis | Defense Distributed: public interest favors protection of First Amendment rights; merits must inform public-interest inquiry | Government: national-security interest justifies public-interest balancing in favor of restraint | Dissent: failing to assess merits taints public-interest analysis; Constitution embodies public interest and favors freedom of speech |
Key Cases Cited
- Nebraska Press Ass'n v. Stuart, 427 U.S. 539 (1976) (prior restraints are the most serious First Amendment infringement; requires high showing to justify restraint)
- New York Times Co. v. United States, 403 U.S. 713 (1971) (government bears heavy burden to justify prior restraint; requires near certainty of harm)
- Elrod v. Burns, 427 U.S. 347 (1976) (loss of First Amendment freedoms, even briefly, constitutes irreparable injury)
- Bernard v. Gulf Oil Co., 619 F.2d 459 (5th Cir. 1980) (government must show expression will surely result in direct, immediate, irreparable damage to justify prior restraint)
- Tesfamichael v. Gonzales, 411 F.3d 169 (5th Cir. 2005) (likelihood of success is arguably the most important factor for preliminary injunctions)
- Sindicato Puertorriqueno de Trabajadores v. Fortuno, 699 F.3d 1 (1st Cir. 2012) (likelihood of success is indispensable in First Amendment preliminary-injunction analysis)
- N.Y. Progress & Prot. PAC v. Walsh, 733 F.3d 483 (2d Cir. 2013) (same)
- Stilp v. Contino, 613 F.3d 405 (3d Cir. 2010) (same)
- WV Ass'n of Club Owners & Fraternal Servs. v. Musgrave, 553 F.3d 292 (4th Cir. 2009) (same)
- Liberty Coins, LLC v. Goodman, 748 F.3d 682 (6th Cir. 2014) (same)
- ACLU of Illinois v. Alvarez, 679 F.3d 583 (7th Cir. 2012) (same)
- Child Evangelism Fellowship of Minn. v. Minneapolis Special Sch. Dist. No. 1, 690 F.3d 996 (8th Cir. 2012) (same)
- Verlo v. Martinez, 820 F.3d 1113 (10th Cir. 2016) (same)
- Scott v. Roberts, 612 F.3d 1279 (11th Cir. 2010) (same)
- Pursuing America's Greatness v. FEC, 831 F.3d 500 (D.C. Cir. 2016) (same)
- Opulent Life Church v. City of Holly Springs, Miss., 697 F.3d 279 (5th Cir. 2012) (injunctions protecting First Amendment freedoms are in the public interest)
- Gordon v. Holder, 721 F.3d 638 (D.C. Cir. 2013) (Constitution may be assumed to express the public interest)