Last fall, the Fifth Circuit Court of Appeals ruled that Defense Distributed’s First Amendment rights were trumped by national security interests. In plain English . . .
John Kerry’s State Department had asserted that Defense Distributed on-line distribution of plans for 3-D printed weapons presented a threat to national security. They ordered DD to take the plans off of their site.
As you might expect, Defense Distributed’s founder, Cody Wilson, didn’t take State’s order lying down. With the help of the Second Amendment Foundation, he sued the State Department on free speech grounds. And in a 2-1 decision last September, he lost.
Their next move was to ask for an en banc hearing of the case by the entire Fifth Circuit. But in a ruling that was handed down today, Defense Distributed’s motion was denied in a 9-5 vote.
Circuit Judge Jennifer Walker Elrod has written a scathing dissent (read the entire ruling here) based on three factors:
1) a failure to consider the suit’s ultimate likelihood of success
2) the justification for prior restraint of free speech based on a flimsy assertion of “national security” by the State Department and
3) what Judge Elrod considers a flawed analysis of the irreparable harm done to Defense Distributed by the State Department’s prohibition
As Judge Elrod summed up her dissent,
We have been warned that the “word ‘security’ is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment.” N.Y. Times, 403 U.S. at 719 (Black, J., concurring). Unfortunately, that is exactly what the panel opinion has done.
You’d assume that at this point Wilson and SAF are now weighing whether to appeal their case to the Supreme Court. We’ll be watching. Stay tuned.