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A case involving the online sharing of 3-D printed gun files may lead the Supreme Court to clarify whether digital blueprints are entitled to free-speech protection.
The high court is weighing whether to review a lower court ruling that denied 3-D printing company Defense Distributed’s bid to block the Department of State from requiring the company to obtain approval before posting its files online. The high court is scheduled to consider Defense Distributed’s petition for review at its Jan. 5 conference.
If the court hears the case, it could open the door to answering the underlying question of whether 3-D printing files are protectable speech.
Defense Distributed is asking the Supreme Court to determine whether the U.S. Court of Appeals for the Fifth Circuit erred by not considering the merits of its claim—that applying a pre-publication approval requirement to online computer-aided design (CAD) files allegedly violates the First Amendment.
3-D printers have been used to create products ranging from jewelry to airplane parts to prescription drugs. Applying First Amendment protection to CAD files would “make it difficult as a practical matter to regulate the content of 3-D printing,” James Beck, counsel at Reed Smith LLP in Philadelphia, whose practice includes 3-D printing, told Bloomberg Law. The government would bear a “hefty burden” to show a regulation passes muster under the applicable First Amendment test, he said.
A Supreme Court ruling that CAD files are covered under the First Amendment would restrict the government’s ability to regulate the files due to constitutional protections for free speech, Kelsey Wilbanks, an attorney at Smith Pachter McWhorter PLC who counsels on 3-D printing issues, told Bloomberg Law. The Food and Drug Administration, for example, would be restricted in limiting the distribution of CAD files for 3-D printed pharmaceuticals under such a ruling, she said.
“This is a case where new 3-D printing technology can test the limits of free speech,” Wilbanks said.
Defense Distributed sued the State Department after the department asked it to remove its CAD files for 3-D printed guns from the internet. The State Department said the company needed to get prior approval before posting the files online because they potentially included technical data related to defense articles which foreign nationals could find and download.
Defense Distributed sought a preliminary injunction to stop the State Department from enforcing the requirement. The district court, in denying the injunction request, ruled that national security interests outweighed Defense Distributed’s interest in protecting its constitutional rights. The 5th Circuit affirmed. Both courts sidestepped the issue of whether Defense Distributed had First Amendment rights in its CAD files.
CAD files command a computer to perform some action and are therefore “inherently functional,” Christopher J. Higgins, senior associate and co-leader of the 3-D printing group at Orrick in Washington, told Bloomberg Law. He said CAD files don’t contain expressive elements such as those found in video games, which the Supreme Court has held are protected speech.
Creating or downloading a CAD design file is the first step of the 3-D printing process. After the file is uploaded to a printer, the printer adds the desired material—one layer at a time—onto a “build tray” until the object is created. The coding within the CAD file supplies coordinates to the printer so it knows where to move the print head to extrude the material.
Defense Distributed’s counsel argues that CAD files are entitled to free speech protection because people use them to exchange information and ideas with one another.
“If the court holds that 3-D printing files don’t have the same level of constitutional protection as old school computer files, that would be a tremendous setback for the technology,” Alan Gura, counsel for Defense Distributed and principal of Gura PLLC in Alexandra, Va., told Bloomberg Law.
The Department of Justice, representing the State Department, declined to comment.
The case is Defense Distributed v. Dep’t of State, U.S., No. 17-190, conference scheduled 1/5/18 .
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