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Plastic handguns which were created using 3D printing technology. REUTERS/Kyodo (JAPAN)

Prepared by Stephen D. Solomon, Editor First Amendment Watch, NYU’s Arthur L. Carter Journalism Institute

Startling advances in technology raise free speech and press issues in ways that we could not have anticipated even ten years ago. Such is the case with 3-D printable guns—handguns that people can manufacture at home using a software code and a special printer that makes three-dimensional objects. Printing guns at home can evade laws intended to keep guns out of the hands of unauthorized people. The plastic guns would be untraceable, and federal law prohibits guns that are undetectable by walk-through metal detection scanners at airports and other security checkpoints. If that’s the case, can the government prohibit the posting of computer code that makes possible the printing of guns?

Under the First Amendment, an order prohibiting publication is called a prior restraint, traditionally considered the most serious violation of the First Amendment. But a federal judge on July 31, 2018 issued a temporary restraining order halting the release of computer code that would enable anyone with a 3-D printer to make a plastic handgun at home. Attorney generals from a handful of states had argued that publication of the instructions posed a national security threat.

This clash of new technology and traditional First Amendment doctrine provides an extraordinary opportunity for students to apply their critical reasoning skills to a controversy of great public importance.

The original Washington Post headline article based on the Pentagon Papers. (June 18, 1971.)

 

 

Background Reading
Read about the First Amendment and prior restraints.
Read background materials about the Pentagon Papers case.
Read about the controversy over the blueprints for 3-D Printed Guns. 
Learning Objectives
1. Prior restraints:  Consistent with the First Amendment, can the government ban software blueprints that enable people to use 3-D printers to manufacture plastic handguns?
2. Does new technology render prior restraint doctrine obsolete in many current circumstances?

Prior Restraints

Prior restraints go at least as far back as 16th century England, when invention of the printing press made it possible to spread dissent and new ideas widely. Such publications could pose a threat to the Crown or accepted religious doctrine, so Henry VIII instituted a system of licensing and censorship to control the spread of ideas. The licensing and censorship system expired in 1694 and in the colonies a few decades later, leaving post-publication punishment through seditious libel laws the most effective way to punish dissent.

Prior restraints are considered the most serious violation of the First Amendment because they stop the circulation and discussion of ideas at their inception. The First Amendment has always been seen as providing, at a very minimum, freedom from censorship by the government or by a private party acting through an injunction issued by a judge.

The most famous prior restraint case is New York Times v. United States, 403 U.S. 713 (1971). The Nixon Administration sought to stop the Times and The Washington Post from publishing stories from leaked classified documents called the Pentagon Papers, a Department of Defense study of U.S. decision-making before and during the conflict in Vietnam. Daniel Ellsberg, a consultant who had worked on the 7,000-page study, leaked it to the newspapers.

The Supreme Court ruled 6 to 3 to lift an injunction against the Times. In a three-paragraph per curiam opinion, it said that any request for a prior restraint “comes to this Court bearing a heavy presumption against its constitutional validity.” The government, the Court said, had not met its burden of showing justification for a restraint on publication. The Court did not articulate a test that the government would have to satisfy in order to stop publication, but Justice Potter Stewart in a concurring opinion stated that publication of information would have to “surely result in direct, immediate, and irreparable damage to our Nation and its people.” (emphasis added) Federal courts have utilized Stewart’s test—an exceptionally difficult standard to meet—in later cases. Whether it is the government or a private party asking for a prior restraint, the focus is on the likelihood that publication would cause direct, immediate and irreparable harm.

Questions for Discussion
1. Why is a prior restraint considered the most serious violation of freedom of speech and press? Compare the effect of prior restraints to punishment of speech after its publication.
2. What injury would the government point to if the code for 3-D guns were released?
3. The government must meet the multi-part test in order to justify a prior restraint. Would the injury specified by the government surely occur?
4. Would the injury be direct—that is, would the injury directly flow from the publication of the 3-D code?
5. Would the injury be immediate?
6. Would the injury be irreparable?
7. Would it be preferable for the government to avoid the First Amendment issue by regulating plastic guns and 3-D printers rather than banning publication of the 3-D blueprints? Would that solution be effective?

New Technology and Prior Restraints

The law governing prior restraints developed at a time when newspapers published only print editions. Thus, a judge’s restraining order could effectively stop publication of additional material during the laborious process of typesetting, printing, and distributing a physical product. But the Internet makes it much more difficult to stop publication because material can be quickly uploaded to websites and it can spread quickly through various electronic means that evade detection.

Questions for Discussion
1. Discuss the difficulties of stopping publication of material in the digital age of blogs, email, and other electronic media. How does this compare to an age before electronic media, when material was published in physical forms like newspapers?
2. Given these problems, under what circumstances would the government be likely to be successful in stopping publication of dangerous material?