Category: Constitutional Law

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FAC 5 (First Amendment Conversations) Madison Unplugged: A Candid Q&A with Burt Neuborne about Law, Life & His Latest Book  

I have spent a lifetime fighting for a very broad First Amendment, keeping the government out of the First Amendment. But I have also said that there is a terrible price that one pays for that. — Burt  Neuborne, “The Open Mind” with Richard D. Heffner, January 16, 1997

He is not a pause-button sort of guy / he is not one to vanish into the void / he is not a fellow you forget / and he is never one to forsake a debate or turn down a chance to raise a rebellious lance. He is animated / calibrated / cultivated / complicated / and always opinionated. He is Bill Brennan on overdrive . . . and then some!

Yes, he is Burt Neuborne, the Norman Dorsen Professor of Civil Liberties at New York University Law School. And he has a new book (Madison’s Music: On Reading the First Amendment), about which I will soon say more — but first a few biographical notes, if only to set the stage for the Madisonian music to come.

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Young Neuborne, HLS 1962

Young Neuborne, HLS 1962

After graduating from Cornell University in 1961, Neuborne studied constitutional law at Harvard under Albert Sacks and had Henry Hart for federal courts. He took a seminar in English Legal History from Samuel Thorne. His Harvard Law School classmates included Michael BoudinStephen BreyerBert Rein, and Patricia Schroeder. Given his interests in the law at that time, it seemed that young Burt Neuborne was destined to be either a public-interest lawyer or a professor. As it turned out, he became both, but it didn’t start out that way.

Had Fortuna not intervened, Neuborne might have continued to be an estate-planning lawyer for the well-heeled of the Eastern corridor. That, at least, is how things looked a half-century or so ago for the young Harvard graduate: “I went to Wall Street for three years after graduation, at a small blue chip firm, Casey, Lane & Mittendorf. [From 1964-1967] I specialized in estate planning for the ultra-rich.” That brand of life-in-the-law was not, however, meant to be his calling. His life-change was the child of chance: “My big break came when a lawyer for the NYCLU transferred into my Army Reserve unit. When a job opened up at NYCLU, I went for it, although my father-in-law almost killed me.” Thankfully, his father-in-law’s homicidal tendencies abated, and with that twist of fate Burt Neuborne’s career traveled along a far different track, one in civil liberties law.

Thus did things begin. And when they did he quickly found himself working in the shadow of some of the ACLU’s brightest lights: “In those days,” he told Joseph Berger, “the NYCLU and ACLU were both located in a building in the Flatiron district honeycombed with left-wing organizations. Aryeh Neier was the NYCLU director. Ira Glasser was associate director. Ruth Bader Ginsburg was a director of the ACLU’s women’s rights project. ‘By the second day I knew this was what I was going to do,’ said Neuborne.” Between 1967 and 1973, Neuborne first worked as staff counsel for the NYCLU and thereafter as the ACLU’s assistant legal director. Later, he served as the National Legal Director of the ACLU from 1981-86.

“I verge on the obsessive,” he once said. How very true.

Burt Neuborne is a scholar / activist / teacher / author / litigator / and one-time actor . . . and rather hyper and quite self-motivated. He has done much and is committed to doing yet more. The Bronx-born lawyer has argued several Supreme Court cases, including Clark v. Community ore for Creative Non-Violence (1984) (the case of the homeless who wanted to sleep in Lafayette Park to protest their plight). Though he lost in the High Court (7-2), earlier he managed to win the Clark case by a 6-5 en banc vote in the DC Circuit, with then Judge Ruth Ginsburg casting the swing vote (though she found “the case close and difficult”).

Neuborne was the founding Legal Director of the Brennan Center, which he oversaw from 1995-2007. Much of  its focus, then and now, relates to efforts to reinforce American democracy and secure campaign finance reform. During the late 1990s, Neuborne authored Building a Better Democracy: Reflections on Money, Politics and Free Speech (Brennan Center for Justice at NYU School of Law, 1999). Consistent with that, the Center has pursued a constitutional course (see, e.g., here, herehere and here) in tune with what Neuborne argued in Nixon v. Shrink (2000) when he opposed the First Amendment claim raised in that campaign finance case. To the same effect, he filed amicus briefs in opposition to those of the ACLU in the following cases:

More recently, he filed an amicus brief in Williams-Yulee v. Florida State Bar on behalf of himself and three other “past leaders of the ACLU” — this time he was on the winning side thanks to Chief Justice John Roberts’ unexpected vote. And Neuborne has debated Floyd Abrams on the pages of The Nation (2011), this on the topic of the legitimacy of Citizens United. (See also here for  video of Intelligence Squared debate with Floyd Abrams and Nadine Strossen).

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Screen Shot 2015-03-08 at 10.30.38 PMFebruary 17, 2015 – 6:00 p.m, New York University Law School, Vanderbilt Hall: It was one of the high points in his long and diverse career. It was the Inaugural Lecture of the Norman Dorsen Professorship in Civil Liberties, and the all-smiling Burt Neuborne was the one to give that lecture named after his long-time friend (video here). In the course of that distinguished lecture, Neuborne admitted: “I have to confess . . . , I signed the [ACLU] brief in Buckley v. Valeo” (1976). Before anyone had a chance to gasp, however, he changed gears and branded his earlier action as a mistake. And then with his characteristic bravado, he added: “Today we live under an imperial seven-word free speech clause that redoubles its deregulatory efforts long after it has lost sight of its Madisonian goals.”

There is, of course, more to the First Amendment story of this man who has been a force in our free-speech world and will likely continue to be one. But my biographical sketch ends here, save for one more comment.

Bottom line: Make of Burt Neuborne what you will — admire him or abhor him — but don’t ignore him, for his roller-coaster-of-a-life-ride has yet to run its daring and twisting course.

_____________________

See here re SCOTUSblog six-part video interview series with Neuborne.

→ See here for curriculum vitae

                           → SeeJustice Sotomayor joins in discussion of Burt Neuborne’s New Book,”                                                      First Amendment News/Concurring Opinions,  March 25, 2015

_____________________

The First Amendment is about making democracy work. — Burt Neuborne (Oct. 2014)

Question: The cover of your book has a photo of an 1816 painting of James Madison by John Vanderlyn (1775-Unknown1852). The image on your book, however, cuts off the top of Madison’s face so that his eyes are hidden. When you first saw a mockup of the jacket, did that fact catch your eye? If so, what did (or now, what do) you make of it?

Neuborne: I liked the veiled and somewhat mysterious image. It reinforces my sense of how difficult it is to recapture the past.

Question: In many ways, Madison’s Music: On Reading the First Amendment (New York University Press, 2015, 272 pp.) is unconventional, starting with its touching full-page dedication to your Father (“Odysseus the Tailor”) / to the poetic cast of the first chapter with a nod to Wallace Stevens / to the textual analysis that informs your theoretical arguments concerning democratic government / to the various historical and conceptual narratives that both challenged and inspired Madison / to the book’s ending which comes full circle with poetic nuance.

Why did you elect to approach your subject with literary and artistic flare rather than by way of a more traditional approach? Read More

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Why Do We Have Bicameralism?

A key structural feature of Article One is bicameralism.  Why is Congress set up in this way?  There are many possible answers.  First, Congress was modeled on Parliament, which had two chambers–Lords and Commons.  Second, splitting Congress into two parts allowed the Framers to reach a compromise on the issue of representation (one house directly elected and one for states).  Third, dividing Congress was a way of creating an internal check on the legislative branch.

Let’s think about this last reason for a moment.  Why should Congress be internally divided while the Executive Branch and the Supreme Court are not?  Madison’s answer to this (in Federalist #51) was that Congress was the most powerful branch, so an internal check was essential.  Did this mean that as divided Congress was now coequal to the other branches?  Of course not.  A division just made it less likely that Congress would exercise its superior power.  The upshot being that bicameralism is further evidence that the three branches are not coequal.

As Orin pointed out in a comment to my prior post, though, it is far from clear what consequence should follow from the observation that the branches are not coequal.  I hope to elaborate on that in a post next week.  In the meantime, Happy Memorial Day Weekend!

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FAN 61 (First Amendment News) Past & Prologue — Ralph Young on the History of Dissent & David Skover on Free Speech in a Robotic Era

In this post I highlight two new works (one on dissent, the other on data, etc.) to emphasize the importance of history, on the one hand, and the challenge of new technologies to inform the way we think about the First Amendment, on the other hand.

Let me start with history: Take dissent out of the cultural and constitutional equation and what remains is faint-hearted freedom. Dissent gives free speech its steel. The First Amendment’s greatest virtue is the protection of those messages we fear and/or loathe — those sent our way by insufferable Anti-Federalists, abolitionists, suffragists, unionists, anarchists, Communists, atheists, civil-rights activists, anti-war pacifists, gay-rights antagonists,  and even nihilists and racists.

Professor Ralph Young

Professor Ralph Young

Enter Temple University Professor Ralph F. Young and his new book, Dissent: The History of an American Idea (New York University Press, 2015). Generally speaking, this 600-page tome, which follows Young’s various volumes titled Dissent in America, does a splendid job of chronicling much of the evolution of dissent in America. His panoramic account spans much in the history of dissent from the plight of the Puritans, to the fate of Native American Indians, to the struggle of abolitionists, to the campaigns of labor activists, to the crusades of feminists, to the sit-ins of civil rights demonstrators, to the marches of war protestors, to the anti-Establishment songs of Bob Dylan, to the Stonewall riots, to the politics of the Tea Party, to the antics of the Occupy Wall Street movement, and more! It is a remarkable achievement.

Bob Dylan & Joan Baez (photo: Daniel Kramer)

Bob Dylan & Joan Baez (photo: Daniel Kramer)

Sadly missing from this otherwise impressive survey of dissent in the United States is any mention of the likes of:

That said, there is still more than a big bundle of worthwhile and eye-opening historical reading to be found between the covers of this engaging volume.

For a philosophical account of what exactly constitutes dissent, see Collins & Skover, On Dissent: Its Meaning in America (Cambridge University Press, 2013).

Forthcoming: Stephen J. Solomon, Revolutionary Dissent (Palgrave Macmillan, January 2016)

Disclosure: Though an ad for Dissent: The History of an American Idea appears on this page, I had no involvement with it and was not otherwise influenced (positively or otherwise) by it.

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Venturing on into the future: On May 26th Seattle University Law Professor David Skover will speak at the Third Annual Governance of Emerging Technologies Conference in Scottsdale, Arizona. His remarks will be delivered at the outset of a panel discussion entitled “Robotics & Autonomous Systems.” The panel will be moderated by Wendell Wallach. The other panelists are Kate Darling and Greg Garvey.  

Professor David Skover

Professor David Skover

Professor Skover’s remarks are based on a work-in-progress, tentatively titled “Intentionless Free Speech: Robots & Receivers” (of which I am the co-author) (NB: We chose the term “intentionless” because it conveys a meaning quite different than “unintentional.”) In brief, Skover’s remarks will examine why First Amendment coverage should be assigned to robotic expression, quite apart from whether such expression merits constitutional protection when balanced against a spectrum of potential harms. The paper argues that robotic expression puts into  bold relief the view that much First Amendment speech is protected because of the experience of a user or receiver. The paper builds on, or moves beyond, or takes issue with the works of robotic free speech scholars Jane Bambauer, James Grimmelmann, Timothy Wu, and Eugene Volokh, among others. The paper began as an outgrowth of a series of conversations with Professor Ryan Calo, whose support and encouragement have been invaluable in developing our ideas in this new and largely uncharted area.

“Intentionless Free Speech” is the latest installment of the authors’ ongoing examination of the relationship between law and technology. This venture began with a 1990 article entitled “The First Amendment in an Age of Paratroopers,” and then continued with a 1992 article entitled “Paratexts” (expanded and reconstituted in “Paratexts as Praxis” in 2010), and ultimately developed into a book entitled The Death of Discourse (1996 & 2nd ed., 2005).

Headline: “NYC Censorship Event Gets Censored” — Another Mohammed Controversy  Read More

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A Presumption in Favor of Congress

I’ve posted twice about the thought that the Constitution does not make the three branches equal.  In fact, the text and the original understanding created Congress as the superior branch.  Only much later (starting with Andrew Jackson) was there a notion that the three branches were co-equal, and this did not become a widely held view until long after ratification.

Well, so what?  The answer is that when courts decide a separation-of-powers questions, there should be a presumption that Congress prevails.  In other words, Justice Jackson’s concurrence in Youngstown is wrong.  When we are in a “zone of twilight” where no legislation speaks to whether a certain power rests with Congress or the President, those claims should not be in equipoise.

Would a presumption in favor of Congress have made a difference in prior separation-of-powers cases?  That I’m less sure about, as I need to work my way through the opinions.

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The Dormant Commerce Clause

Today’s opinion in Comptroller v. Wynne produced two dissenting opinions (one from Justice Scalia and one from Justice Thomas) arguing that the Dormant Commerce Clause should be repudiated.  (Justice Scalia makes some allowance for stare decisis in that context, but not much.)

I think there is a lot to be said in favor the view that the Dormant Commerce Clause is a doctrine that rests on weak or poorly-reasoned foundations.  In practical terms, I suppose the question is would Congress adequately police state economic discrimination against other states if the Court stopped doing that?  One can think of cases where a state’s regulations might prompt federal preemption, but most of the time you would think that Congress would dismiss the issue as insubstantial.  Perhaps the power to address this could be delegated to an agency, and the same issues now addressed under the Dormant Commerce Clause would become administrative law matters subject to only “arbitrary and capricious” review in the courts.  That might be a better approach, come to think of it.

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The First Branch

In this post I want to start a discussion of an observation made about twenty years ago by Garry Wills.  Wills is one of my favorite authors, and a significant portion of his scholarship is devoted to the Constitution.  Here is the claim:  The three branches are not co-equal.  As a textual and as an original matter, Congress is the preeminent branch.  How do we know this?

1.  Congress is discussed first (Article I).

2.  Article I is the longest and most detailed of the articles.

3.  Congress wields the power of impeachment over the other two branches.  The other two branches cannot, by contrast, remove a member of Congress.

4.  Congress controls (albeit with some limitations) the salaries and staff of the other two branches.  They, though, cannot control Congress’s pay and staff.

5.  Congress can override a presidential veto.  He has no recourse if that happens.

These are just some of Wills’ examples.  Now the obvious response is that many of these points are formalistic.  In practice, the President or the Supreme Court is more powerful because Congress does not wield many of its weapons, can’t act in a unified way, and so on.  True enough, but how relevant is that for a court addressing a separation-of-powers question such as Zitovsky?  If you start with the premise that the constitutional text made Congress the leading branch, then shouldn’t that usually outweigh subsequent practice if you’re an originalist or a structuralist?

Anyway, I’ll have more to say about this next week.

 

 

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FAN 60 (First Amendment News) — Mohammed-Cartoon Controversy Continues — Liberals Divided

We defend the First Amendment for everybody because there is no other way to defend it for ourselves.Ira Glasser (December 1977)

Intolerance is a human tragedy and must be addressed. But if there’s one cardinal rule in America, it’s that we err on the side of counter-speech, not censorship, when we hear things we don’t like but that don’t directly hurt us. — Gabe Rottman (August 12, 2013)

It’s axiomatic: Give it enough time and any irksome First Amendment issue will resurrect, albeit in new cultural garb but similar enough to be more than a distant cousin. The Mohammed-cartoon controversy is only the latest example of an old issue remerging to once again test the steel of our commitment to free speech. And with a firebrand like Pamela Geller — the  who promoted the “Draw the Prophet” contest in Texas — fanning the flames, some find the need to back away from the speech-protective tradition of the First Amendment. Predictably, rationalizations are tendered and excuses offered while exaggerations are served up in bountiful plenty. Why? Simple: Whenever speech really offends us (particularly when the speaker is over-the-top provocative), there is a strong tendency to default to a censorial mindset. Then again, the true greatness of our First Amendment is our constitutional commitment to default in a different direction — to ratchet  towards freedom.

Frank Collin demonstrating in Chicago

Frank Collin demonstrating in Chicago (1978)

You hear the words a lot these days in the news: hate speech / incendiary speech / fighting words / and much more as the battles lines draw around the Texas controversy. If you turn the free-speech clock back 38 years and situate the First Amendment in Illinois, you will soon enough discover a similar conflict with people throwing around similar epithets. Remember Skokie? Remember the Nazi campaign to march there, in that predominately Jewish community with many Holocaust survivors? (See YouTube clips here and here — see also here)

Before and after the matter was resolved in 5-4 in a per curiam opinion by the Supreme Court (with liberals siding with the claims of the National Sociality Party) and later in a cert. denial in 1978, there was considerable and heated debate among liberals. And nowhere was that debate more heated than in the ranks of the American Civil Liberties Union, which through its Illinois affiliate defended the First Amendment claims of Frank Collin — the lead party in the suit to permit the Nazis to march in Skokie.

The story of this contentious moment in our free-speech history is ably set out in Philippa Strum’s When the Nazis Came to Skokie: Freedom for Speech we Hate (1999). Part of that history is the enormous price the ACLU paid to defend the First Amendment even if it meant risking the group’s own financial survival. (In those days, the New York Times editorial board stood with the ACLU in its time  of peril.) Years later, that sacrifice came to be seen by many as a badge of honor. In some ways there was even a Shakespearean quality to the fight fought back then by the ACLU:

This day is call’d the feast of Crispian. He that outlives this day, and comes safe home,Will stand a tip-toe when this day is nam’d, And rouse him at the name of Crispian. He that shall live this day, and see old age, Will yearly on the vigil feast his neighbors  And say “To-morrow is Saint Crispian.”Then will he strip his sleeve and show his scars, And say “These wounds I had on Crispin’s day.”

National ACLU Weighs in on Cartoon Controversy

Lee Rowland

Lee Rowland

Meanwhile, a new fight emerges as liberals once again battle over how much free-speech freedom they can tolerate. Though up to now the national ACLU has not been very vocal on the cartoon controversy, when I inquired I received the following reply from Lee Rowland, the Staff Attorney for the Speech, Privacy & Technology Project: “I just wanted to let you know that the ACLU unequivocally believes that Ms. Geller and AFDI’s speech was protected, and that frankly, it’s not even a tough question. Our First Amendment protections mean nothing if they do not extend to speech that many find objectionable and provocative.”

The Draw-MohammedCartoon Controversy — Seven Views

 Real Time with Bill Maher: In Defense of Free Speech (HBO): “This is America. Do we not have the right to draw whatever we want? . . . Do we have to accept that Muslims are unable to control themselves the way we would ask everyone else in the world?  To me that’s bigotry; that’s the soft bigotry of low expectations.”

Bret Stephens

Bret Stephens

Bret Stephens, “In Defense of Pamela Geller,” Wall Street Journal, May 11, 2015: Ms. Geller is hammering home the point, whether wittingly or not, that the free speech most worth defending is the speech we agree with least. That’s especially important when the enemies of free speech—in this case, Muslim fanatics—are invoking the pretext of moral injury to inflict bodily harm. A society that rejects the notion of a heckler’s veto cannot accept the idea of a murderer’s veto simply because the murderer is prepared to go to greater extremes to silence his opponents.”

Editorial, “Free Speech vs. Hate Speech,” NYT, May 6, 2015: “the Muhammad Art Exhibit and Contest in Garland, Tex., was not really about free speech. It was an exercise in bigotry and hatred posing as a blow for freedom.”

Eugene Volokh, “No, there’s no ‘hate speech’ exception to the First Amendment,” Volokh Conspiracy, May 7, 2015: “there is no hate speech exception to the First Amendment. Hateful ideas (whatever exactly that might mean) are just as protected under the First Amendment as other ideas. One is as free to condemn Islam — or Muslims, or Jews, or blacks, or whites, or illegal aliens, or native-born citizens — as one is to condemn capitalism or Socialism or Democrats or Republicans.”

 Kathleen Parker, “Use and abuse of First Amendment,” Yakima Herald, May 10, 2015: “I take a back seat to no one when it comes to defending free speech — even that of the worst sorts. We let neo-Nazis and the Ku Klux Klan march and protest because the true test of free speech is that unpopular speech is tolerated.That said, we needn’t embrace or celebrate people like Geller, who intentionally try to provoke a confrontation.She’s welcome to sponsor a cartoon contest, but we don’t have to attend. If Geller wants to stand on street corners and shout her views, no one has to listen.”

 John Costa, “Testing the First Amendment,” The Bulletin, May 10, 2015: “The question for those of us who value the First Amendment is easy to state but painfully difficult to answer. Are there limits we should impose on ourselves?In fact, newspapers that have standards of publication do it every day, which I know doesn’t answer the question of whether to publish the images of Charlie Hebdo or the cartoonists in Texas. I wholly support their right to their choice, but for me the answer is a resounding, ‘It would depend.'”

Stuart Anderson, “Have Mormons Become America’s Best Advocates For Freedom Of Speech?,” Forbes, May 7, 2015:”A worldwide debate has emerged over religion and freedom of speech. And who, by example, has become America’s best advocate for free speech? The surprising answer may be the Church of Jesus Christ of Latter-day Saints.”

Yale Law Professors see Blueprint for Campaign Reform in Williams-Yulee Read More

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The Lost Art of Alternative Holdings

In the discussion of the same-sex marriage cases, there is a lively argument ongoing about whether the Court should use sexual orientation or sex as the basis for its decision.  Maybe same-sex marriage bans discriminate on the basis of sex and cannot survive heightened scrutiny.  Maybe the real issue is that these bans irrationally discriminate against people based on their sexual orientation.

I’m not sure why these cannot both be included in the Court’s opinion (assuming you could get five votes for each).  Loving said that interracial marriage bans violated the Equal Protection Clause (as a discrimination based on race) and the fundamental right to marry.  It is fair to say that we now think of Loving primarily as a race case, but that was not the only basis for the decision.

Alternative holdings are more confusing than a single holding, of course, but in this instance I would argue that two holdings would be superior to only the sex discrimination rationale, in part because the latter leaves open the constitutionality of laws discriminating on the basis of sexual orientation.

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FAN 59.1 (First Amendment News) Online Instructions on How to Make 3-D Printable Guns — Protected Speech?

It’s fun to challenge the State to greater and greater levels . . . To challenge it successfully enough leads to its own suicide, its own collapse. . . . There is a certain kind of logic to it, an extreme logic, a fatal startegy.  — Cody Wilson (ReasonTV)

Cody Wilson -- have gun, will publish

Cody Wilson — have gun, will publish

Cody Wilson likes guns, of a certain variety that is. He savors guns of the 3-D printable genre. With Mr. Wilson’s instructions and a costly 3-D printer, anyone can make a “Wiki weapon” or “Liberator” as he tags these plastic guns that can fire deadly bullets. The process is summarized by the “techno anarchist” in this YouTube video (see also 25-minute ReasonTV video interview here).

What does this mean? Well, it “won’t be long before a felon, unable to buy a gun legally, can print one at home. Teenagers could make them in their bedroom while their parents think they are ‘playing on their computer.’ I’m talking about a fully functional gun,” adds New York Times reporter Nick Bilton, “where the schematic is downloaded free from the Internet and built on a 3-D printer, all with the click of a button.” Worse still, says Bilton, “[a]fter committing a crime with a printed weapon, a person could simply melt down the plastic and reprint it as something as mundane as a statue of Buddha. And guns made of plastic might not be spotted by metal detectors in airports, courthouses or other government facilities.” (See May 6, 2015 NYT story here re history leading up to this controversy.)

We’re not interested in making you a machine where you have a more productive life. We’re interested in multiplying the problem. — Cody Wilson (BackChannel, March 11, 2015)

According to a Fox News report, “[w]ithin two days of publishing the blueprints on the Internet, on May 5, 2013, 100,000 people around the world had downloaded them. The goal, Wilson said, was to invalidate the government’s ‘unconstitutional’ hold on gun technology.” Predictably, the government stepped in. The State Department “claimed Wilson violated the International Traffic in Arms Regulations, which ‘requires advance government authorization to export technical data,’ and as a result, could spend up to 20 years in prison and be fined as much as $1 million per violation.”

In October 2014 Wilson revealed his biggest project to date: the Ghost Gunner, a miniaturized [Computer Numeric Control] milling machine small enough to sit on a desktop. It’s thousands of dollars cheaper than big CNC mills [and can be used to make plastic guns] . . . . Defense Distributed sold out a pre-order of 500 machines, collecting nearly $700,000 in the process. Wilson moved back to Austin. By December, Defense Distributed was assembling Ghost Gunners in a new, 1,800-square-foot factory. [Source here]

Wired Magazine branded Cody Wilson as one of the “15 most dangerous people in the world.”

Acting through his 3-D gun printer company, Defense Distributed, the former University of Texas Law School student (he dropped out) has decided to defend his purported Second Amendment rights by way of a First Amendment defense to publish his computer code gun-making instructions. To that end, the 27 year-old Wilson has taken on the State Department by filing a lawsuit charging that the government’s attempts to prevent him from publishing his instructions are an unconstitutional prior restraint of his free speech rights.

  • Name of Case: Defense Distributed v. U.S. Dep’t of State (complaint here)
  • Named Plaintiffs: Defense Distributed & Second Amendment Foundation
  • Complaint filed in: US District Court for the Western District of Texas, Austin Division

The attorneys in the case are:

  1. Alan Gura (he successfully argued Dist. of Columbia v. HellerMcDonald v. Chicago)
  2. Matthew Goldstein, and
  3. Professor Josh Blackman.

Summary of Complaint

Alan Gura

Alan Gura

“Contrary to the Justice Department’s warning that such actions are unconstitutional, Defendants unlawfully apply the International Traffic in Arms Regulations, 22 C.F.R. Part 120 et  seq. (“ITAR”) to prohibit and frustrate Plaintiffs’ public speech, on the Internet and other open forums, regarding arms in common use for lawful purposes. Defendants’ censorship of Plaintiffs’ speech, and the ad hoc, informal and arbitrary manner in which that scheme is applied, violate the First, Second, and Fifth Amendments to the United States Constitution. Plaintiffs are entitled to declaratory and injunctive relief barring any further application of this prior restraint scheme, and torecover money damages to compensate for the harm such application has already caused.”

First Amendment claims 

  1. Defendants’ prepublication approval requirement is invalid on its face, and as applied to Plaintiffs’ speech, as an unconstitutional prior restraint on protected expression.
  2. Defendants’ prepublication approval requirement is invalid on its face, and as applied to Plaintiffs’ speech, as overly broad, inherently vague, ambiguous, and lacking adequate procedural protections.
  3. Defendants’ prepublication approval requirement is invalid as applied to Defense Distributed’s posting of the Subject Files, because Defendants have selectively applied the prior restraint based on the content of speech and/or the identity of the speaker.
  4. Defendants’ interruption and prevention of Plaintiffs from publishing the subject files, under color of federal law, violates Plaintiffs’ rights under the First Amendment to the United States Constitution causing Plaintiffs, their customers, visitors and members significant damages. Plaintiffs are therefore entitled to injunctive relief against Defendants’ application of the prior restraint.