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Washington v. Department of State: First Amendment Claims Won’t Overcome Procedural Defects, Blocking Publication of 3D-printable Weapons File

Reports First Amendment

State of Washington v. United States Department of State, No. C18-1115RSL (W.D. Wash. Nov. 12, 2019), hosted by the Washington State Office of the Attorney General

On November 12, 2019, the United States District Court for the Western District of Washington found that the State Department violated the Administrative Procedure Act (“APA”) in its decision to modify the United States Munitions List (“USML”) to permit the online publication of blueprints for 3D-printable weapons. This decision effectively continues the restriction on the publication of computer aided design (“CAD”) files for firearms in the latest development in years-long disputes between Defense Distributed, the federal government, and various state governments.

This litigation stems from a July 2018 State Department decision to revise the list of arms subject to export restrictions known as the United States Munitions List (“USML”). From at least 2013 to April 2018, the agency had consistently taken the position that national security and public safety threat posed by the online publication of CAD files for weapons authorized the restrictions imposed by including them in the USML.

In July 2018, however, the Department of State changed its position and issued a “temporary modification” to the USML to allow for their online publication while the agency conducted formal rulemaking. (This decision coincided with a settlement agreement in a prior lawsuit, Defense Distributed v. United States Department of State, 838 F.3d 451 (5th Cir. 2016), to allow Defense Distributed to immediately begin publishing its firearms CAD files.)

Nineteen states and the District of Columbia then sued Defense Distributed, the Department of State, and other private defendants to block their publication, and moved for summary judgment on the issue of whether the State Department violated the APA. Private defendants filed for summary judgment on the issue of whether prohibiting the online publication of the CAD files constituted an unlawful restriction of speech.

The court found two procedural deficiencies in the agency’s decision. First, the State Department violated the procedural requirements of the Arms Export Control Act (“AECA”), 22 U.S.C. § 2778 (2014). Under the AECA, the agency is required to give Congress 30 days’ notice before removing items from the USML. Here the agency issued its “temporary revision” to the USML without notifying Congress. The court found that this temporary revision constituted the removal of an item. Since the agency did not notify Congress prior to their action, it acted “without observance required by law,” and the court set it aside under §706 of the APA.

Addressing the second deficiency, the court held that the agency’s decision was arbitrary and capricious because it failed to provide a justification for its reversal. Prior this reversal, the agency had made “explicit, recent findings” that the publication of CAD files would be contrary to the goals of national security. The court found that the agency pointed to nothing in the administrative record to support its reversal, and that the agency “must do more than simply announce a contrary position.”

However, the court did not address the merits of the private defendants’ First Amendment claims. Defense Distributed made two related claims to argue that their CAD files are protected speech and that blocking the publication of these CAD files unlawfully restricted their speech.

First, private defendants argued that the agency decided to permit CAD files to avoid constitutional problems posed by blocking their publication. The court rejected this argument since there was no indication that the agency considered First Amendment concerns in their rationale.

Second, defendants argued that the First Amendment precludes the agency from blocking their files because such regulation would be presumed unconstitutional as a restraint on speech, subject to strict scrutiny. However, since plaintiffs’ claims in this case were limited to APA deficiencies, and since the agency did not justify their actions on the basis of the First Amendment, the court found this argument to be irrelevant to the merits of the APA claims.

Defense Distributed raised similar First Amendment claims in Defense Distributed v. Dept. of State, and there the Fifth Circuit declined to address the likelihood of their success on the merits of these claims, instead holding that Defense Distributed failed to carry its burden on two, non-merits requirements for their preliminary injunction motion. It did, however, suggest that in balancing the harms, the national security harms cited by the State Department outweighed the potential constitutional harms by restricted speech.

The absence of a ruling on the merits has left others to speculate how the Supreme Court may resolve this issue. Noah Feldman, writing for Bloomberg about the earlier case, argued that the interests cited by the State Department in enacting the initial ban would not be strong enough to meet the “exacting standard” required to uphold what he sees as a content-based restriction on speech. In contrast, the Harvard Law Review noted that since CAD files are instructions for making physical objects, affording them the full protection of the First Amendment would severely proscribe the government’s ability to regulate everything from pharmaceuticals to bioweapons. Defense Distributed indicated to Bloomberg that they will appeal this most recent decision, and it remains to be seen whether the Ninth Circuit will address the First Amendment claims directly.