Defense Distributed v. United States Department of State
121 F. Supp. 3d 680
W.D. Tex.2015Background
- Plaintiffs Defense Distributed and Second Amendment Foundation (SAF) challenge State Department/DDTC/individual officials’ implementation of ITAR/AECA export controls for “technical data” relating to firearms, seeking a preliminary injunction against prepublication approval for unclassified information.
- Defense Distributed previously posted CAD/3D-printing files (Published Files) online, received a May 2013 DDTC letter suggesting possible ITAR-controlled disclosures, removed the files, and submitted commodity-jurisdiction/prepublication requests that they say went unanswered or delayed.
- DDTC later determined certain Ghost Gunner software/files were subject to State Department jurisdiction while the Ghost Gunner machine itself was not; DOPSR declined to review some CAD files and directed Defense Distributed to DDTC.
- Plaintiffs assert claims for ultra vires action, First Amendment prior restraint, Second Amendment infringement, Fifth Amendment vagueness/due process, and Bivens damages; they seek to enjoin enforcement of prepublication approval for unclassified technical data.
- The court held a hearing and denied the motion for a preliminary injunction, finding plaintiffs showed irreparable injury but failed to demonstrate likelihood of success on the merits and that the balance of equities/public interest favored the government.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ultra vires: agency exceeded authority by treating public Internet posts as "exports" under AECA/ITAR | ITAR’s definition of "export" cannot constitutionally or statutorily reach domestic public speech; DDTC acted beyond authority | AECA/ITAR authorize control of "defense articles" & technical data; plaintiffs’ admitted purpose (global dissemination) falls squarely within congressional objectives | Denied: plaintiffs failed to show DDTC acted without any colorable basis; no likelihood of success on ultra vires claim |
| First Amendment: prepublication requirement is an unconstitutional prior restraint on protected speech | Computer code/CAD files are expressive speech; ITAR as applied is an overbroad, content-based prior restraint that fails tailoring | Technical data can be regulated as export control; the rule is content-neutral (aimed at secondary national-security effects) and provides licensing/commodity-jurisdiction procedures | Denied: court treated files as speech for analysis but found ITAR is content-neutral, advances substantial government interests, provides processes, and survives intermediate scrutiny |
| Second Amendment: ITAR restricts right to keep and bear arms by blocking access to files that enable firearm manufacture | Ability to manufacture (including via 3D printing) is protected; foreign-directed export controls burden members’ ability to obtain manufacturing information | Plaintiffs lack standing (or insufficiently plead); even if implicated, restrictions do not target core conduct and survive intermediate scrutiny as tailored to public safety/foreign policy | Denied: SAF had associational standing, but plaintiffs failed to show likelihood of success; intermediate scrutiny applied and AECA/ITAR survive |
| Fifth Amendment vagueness: ITAR prepublication/export rules are unconstitutionally vague | Terms like "defense articles" and "export" leave ordinary people guessing whether speech is prohibited | ITAR and the Munitions List (plus definitions and commodity-jurisdiction process) provide ascertainable standards and procedures | Denied: court found definitions and regulatory processes give fair notice; prior circuit rulings reject vagueness challenge |
Key Cases Cited
- United States v. Zhen Zhou Wu, 711 F.3d 1 (1st Cir. 2013) (discusses Munitions List as categories/attributes rather than item-by-item list)
- Universal City Studios, Inc. v. Corley, 273 F.3d 429 (2d Cir. 2001) (computer code can qualify as expressive speech under the First Amendment)
- Junger v. Daley, 209 F.3d 481 (6th Cir. 2000) (computer source code is protected speech despite functional aspects)
- Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) (upholding material-support restrictions where national-security interests are compelling)
- District of Columbia v. Heller, 554 U.S. 570 (2008) (Second Amendment protects an individual right to keep and bear arms)
- Time Warner Cable, Inc. v. Hudson, 667 F.3d 630 (5th Cir. 2012) (articulation of intermediate-scrutiny standard for content-neutral restrictions)