Amicus - Texas Public Policy Foundation

Case: 15-50759
Document: 00513314528
Page: 1
Date Filed: 12/18/2015
NO. 15-50759
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________________________
IN THE MATTER OF
DEFENSE DISTRIBUTED; SECOND AMENDMENT FOUNDATION,
INCORPORATED
Plaintiffs Appellants
v.
UNITED STATES DEPARTEMENT OF STATE; JOHN F. KERRY, in His Official
Capacity as the Secretary of the Department of State;
DIRECTORATE OF DEFENSE TRADE CONTROLS, Department of State
Bureau of Political Military Affairs; KENNETH B. HANDELMAN,
Individually and in His Official Capacity as the Deputy
Assistant Secretary of State for Defense Trade Controls in the
Bureau of Political-Military Affairs; C. EDWARD PEARTREE,
Individually and in His Official Capacity as the Director of the
Office of Defense Trade Controls Policy Division; SARAH J.
HEIDEMA, Individually and in Her Official Capacity as the
Division Chief, Regulatory and Multilateral Affairs, Office of
Defense Trade Controls Policy; GLENN SMITH, Individually and in
His Official Capacity as the Senior Advisor, Office of Defense
Trade Controls,
Defendants - Appellees
_____________________________________
On Appeal from the United States District Court
for the Western District of Texas, Austin Division
No. 15-cv-00372 (Hon. Robert Pitman)
__________________________________________________________________
Brief of Texas Public Policy Foundation as Amicus Curiae in Support of Defense
Distributed
__________________________________________________________________
Counsel listed on inside cover
Exhibit A
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ROBERT HENNEKE
Texas Bar No. 24046058
[email protected]
JOEL STONEDALE
[email protected]
Texas Public Policy Foundation
Center for the American Future
901 Congress Avenue
Austin, TX 78701
PHONE: (512) 472-2700
FAX: (512 472-2728
Attorneys for Texas Public Policy Foundation, as Amicus Curiae for Defense
Distributors
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CERTIFICATE OF INTERESTED PERSONS

Amicus Curiae certify that they are a non-profit 501(c)(3) organization.
Undersigned counsel of record certifies that no person or entities as
described in the fourth sentence of Rule 28.2.1 have an interest in the outcome of
this case. These representations are made in order that the judges of this court may
evaluate possible disqualifications or recusal.
Dated: December 18, 2015
__________________________________
ROBERT HENNEKE
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TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PERSONS ... i
TABLE OF CONTENTS .... ii
TABLE OF AUTHORITIES .. iv
STATEMENT OF AMICUS CURIAE .. vi
STATEMENT REGARDING ORAL ARGUMENT ... vii
INTRODUCTION ... 1
ARGUMENT ... 1
I.
REGULATORY BACKGROUND ... 1
II.
ITAR VIOLATES THE FIRST AMENDMENT ..... 3

A.
ITAR Is A Content-Based Restriction On Speech .. 4

a.
The District Court Improperly Looked To The

ITARs Purpose To Determine Whether They
Are Content-Based 4
b.
Even If It Is Proper To Consider The ITARs

Purpose, Their Purpose Is To Restrict Information
Because Of Its Content.............................................................. 6
B. ITAR is an Unconstitutional Prior Restraint on Speech ........... 9

a.
Open-Ended Licensing.... 10
b.
Lack of Procedural Safeguards ... 11
III.
ISSUING THE TEMPORARY INJUNCTION WILL NOT HARM THE

PUBLIC INTEREST ... 13
IV.
CONCLUSION ... 15
ii
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CERTIFICATE OF COMPLIANCE ..... 16

CERTIFICATE OF SERVICE .. 17
iii
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TABLE OF AUTHORITIES
Cases
Alexander v. United States, 509 U.S. 544 (1993) 9
Asgeirsson v. Abbott, 696 F. 3d 454 (5th Cir. 2012) .... 7, 8
Cahaly v. Larosa, 796 F.3d 399 (4th Cir. 2015) ..... 7
City of Lakewood v. Plain Dealer Publishing Co., 486 US 750 (1988) .. 10, 11
Defense Distributed v. United States Dept. of State, Dkt. No. 32
at 10, 15-CV-372-RP (W.D. Tex. June 10, 2015) ..............4, 6, 8, 9, 12, 14
Freedman v. Maryland, 380 U.S. 51 (1965) ..... 11
Florida Star v. B.J.F., 491 U.S. 524 (1989) .. 13
Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992) ... 11
Kagan v. City of New Orleans, 753 F.3d 560 (5th Cir. 2014) .. 7, 8
Kunz v. New York, 340 U.S. 290 (1951) .... 11
McCullen v. Coakley, 134 S. Ct. 2518 (2014) ..... 3, 7
New York Times v. United States, 403 U.S. 713 (1971) .12, 14, 15
Norton v. City of Springfield, 612 Fed. Appx. 386 (7th Cir. 2015) ..... 7
R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) ... 3
Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) .... 5, 6, 7, 9
Renton v. Playtime Theatres, Inc., 475 U.S. 41(1986) .... 6, 7, 8
Shuttlesworth v. Birmingham, 394 U.S. 147 (1969) ...... 11
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Simon & Schuster, Inc. v. Members of the N.Y. State Crime Victims Bd.,
502 U.S. 105 (1991) .. 3
Southeastern Promotions, Ltd. v. Conrad, 420 US 546 (1975) ... 9
Ward v. Rock Against Racism, 491 U.S. 781 (1989) ... 6, 7
Statutes
22 C.F.R 120.4 ...... 9
22 C.F.R. 120.4(a) ...... 12
22 C.F.R. 120.10(a)(1) .. 2, 5
22 C.F.R. 120.10(b) .. 5
22 C.F.R. 120.10(d) .. 2
22 C.F.R. 120.17(a)(4) .. 1
22 C.F.R. 121.1 ....... 2, 4, 5, 12
22 C.F.R. 127.1 ..... 1, 5
22 U.S.C. 2778(c), (e) ... 2
22 U.S.C. 2778(h) ... 12
Other Authorities
Forbes, 3D-Printed Gun's Blueprints Downloaded 100,000 Times In Two Days
(With Some Help From Kim Dotcom),
http://www.forbes.com/sites/andygreenberg/2013/05/08/3d-printed-gunsblueprints-downloaded-100000-times-in-two-days-with-some-help-fromkim-dotcom/ (last visited December 9, 2015).. 13
Defiant Pirate Bay to continue hosting banned 3D printer gun designs,
https://www.rt.com/news/liberator-gun-defcad-pirate-bay-122/ (last visited
December 9, 2015) ...... 13
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STATEMENT OF AMICUS CURIAE

Pursuant to Fed. R. App. P. 29(c), this Brief is filed on behalf of the Texas
Public Policy Foundation (Foundation), a Texas-based nonprofit policy
organization. The Texas Public Policy Foundations mission is to promote and
defend liberty, personal responsibility, and free enterprise in Texas and the nation
by educating and affecting policymakers and the Texas public policy debate with
academically sound research and outreach.
The Texas Public Policy Foundation believes that freedom of speech is
fundamental to its guiding principles of liberty, personal responsibility and free
enterprise.
This Brief is filed in support of the Defense Distributed. The Foundation
was not paid for its preparation and the Foundation did not pay another entity or
attorney for doing so. The Foundation adopts by reference the Statement of the
Case and Statement of the Issues by Plaintiffs and appreciates the opportunity to
submit this Brief to the Court.
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STATEMENT REGARDING ORAL ARGUMENT

Amicus requests oral argument.
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INTRODUCTION
The Texas Public Policy Foundation urges the Court to reverse the
decision below. The International Traffic in Arms Regulations (ITAR) should not
and cannot be used to regulate unclassified, privately developed information. The
State Departments broad assertion of authority to regulate any information that
could potentially be used to create a weapon is both a content-based restriction on
speech and an unconstitutional prior restraint. ITAR restricts the free flow of ideas,
hindering technological development and chilling the freedom of expression.
Furthermore, the files that are the subject of this suit are already available on the
Internet. The district court was thus incorrect to find that enjoining the use of ITAR
to prevent the files from being disseminated would harm the public interest. The
courts order should therefore be reversed.
ARGUMENT
I.
REGULATORY BACKGROUND
ITAR criminalizes the export1 of technical data2 about defense articles3
without authorization from the government. See 22 C.F.R. 127.1. These terms are
ITARs definition of export includes putting the information on the Internet (since
foreigners might access) it or even sharing it domestically with a foreign person. See 22 C.F.R.
120.17(a)(4). (defining export to include Disclosing (including oral or visual disclosure) or
transferring technical data to a foreign person, whether in the United States or abroad.). Given the
breadth of the information considered technical data and defense articles, ITAR criminalizes
innocent discussions on technical topics in Internet forums or in person. If a model rocket hobbyist
provides technical information on a forum on the Internet, and a State Department official believes
that the information is required for production of an unmanned aerial vehicle, the hobbyist could
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defined broadly enough to encompass everyday technology not typically thought of

as posing a military danger. Though called the International Traffic in Arms
Regulations, they regulate information that is wholly domestic and cannot be
considered arms.
Put together, these definitions cover so much speech that the State
Department saw fit to exclude information concerning general scientific,
mathematical, or engineering principles commonly taught in schools, colleges, and
universities. 22 C.F.R. 120.10(d). That implies that the State Department thinks
that such basic principles would be illegal to discuss online if they were not
general or not commonly taught in schools. The ITARs need to exclude math and
physics from their restrictions on speech is perhaps the best demonstration of their
be incarcerated for 20 years. See 22 U.S.C. 2778(c), (e). If a reporter publishes an article on a
new technical development constituting technical data, he too could be imprisoned.
2
The State Departments definition of technical data, extends the already broad list of
defense articles into common, nonmilitary items. It includes, Information required for the
design, development, production, manufacture, assembly, operation, repair, testing, maintenance
or modification of defense articles. 22 C.F.R. 120.10(a)(1). A great deal of nonmilitary
information is required for the production, of military equipment (to say nothing of operation
and development). For example, the production of a tank requires information about how to
improve the strength of steel. The production of a rifle requires knowledge of how to make a
spring for the trigger. An improvement in making propellers for ships may be used for a
battleship. Discussion of these nonmilitary subjects can land Americans in federal prison.
3
The list of items and technology considered defense articles are enumerated on the
United States Munitions List (USML). The USML includes many military items, such as tanks,
battleships and bombs, as well as technical data about them. 22 C.F.R. 121.1 at Category IVVII. But it also includes virtually every firearm imaginableeven single shot hunting or target
riflesas well as technical data about those firearms. See Id., Category I at (a), (b), and (i).
Only black powder muzzle-loaders and non-combat shotguns are excluded. Even more
concerning, it contains an open-ended catchall provision, allowing the State Department to impose
ITAR control over Any article not enumerated on the U.S. Munitions List. Id., Category XXI.
Read literally, the Munitions List contains everything on it, and anything not on it that the State
Department feels like regulating. In simpler terms, this could be expressed as anything the State
Department wants to regulate.
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overbreadth and overinclusiveness. Simon & Schuster, Inc. v. Members of the N.Y.
State Crime Victims Bd., 502 U.S. 105, 120-21 (1991) (invalidating law due to
overinclusiveness).
II.
ITAR VIOLATES THE FIRST AMENDMENT

The district court erred primarily because it failed to recognize that ITAR is a
content-based restriction on speech. A speech restriction is content based if it

require[s] enforcement authorities to examine the content of the message that is
conveyed to determine whether a violation has occurred. McCullen v. Coakley, 134
S. Ct. 2518, 2531 (2014) (quotation omitted). ITAR does just that. By regulating
only speech that conveys technical data about defense articles, the regulations
application directly depends on the content of the speech in question. Indeed, their
explicit purpose is to suppress such speech in order to keep it out of the hands of
foreign militaries.
As a content-based restriction, ITAR is presumptively invalid. R.A.V. v. City
of St. Paul, 505 U.S. 377, 382 (1992). It can only withstand strict scrutiny if the
government proves it is narrowly tailored to serve compelling government interests.
Id. at 395. That Defendants cannot do. While restricting our enemies access to
military technology is certainly a compelling government interests, ITAR reaches
far beyond actual defense articles into information about everyday items and singleshot pistolsguidance that would not aid even the most ill-equipped militants.
Furthermore, much of the ITAR-controlled information is already on the Internet.
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There can be no compelling government interest in restricting publication of

technical information that is already publicly available. The regulations are therefore
not narrowly tailored.
A.
ITAR Is A Content-Based Restriction On Speech
ITAR only applies to technical data about defense articles. If someone

wants to post designs for a weapon not on the USML, such as a non-combat
shotgun, they can. See 22 C.F.R. 121.1 at Category I. If that same person wants to
post designs for a single-shot pistol, they cannot. See Id. The difference in treatment
is based on the information or message communicated: how to create a non-combat
shotgun versus how to create a pistol. The District Court recognized that much.
Defense Distributed v. United States Dept. of State, Dkt. No. 32 at 13 15-CV-372RP (W.D. Tex. June 10, 2015) (noting that ITAR unquestionably regulates speech
concerning a specific topic). But, it failed to recognize that government
suppression of the pistol instructions but not the shotgun instructionsbecause of
the content of the message conveyedrenders the regulation content-based.
The regulation is content-based for two separate reasons. First, the regulation
is content based on its face because it treats information differently based on the
message conveyed. Second, the governments purpose in regulating based on
content is to suppress the information about defense articles. Each of these flaws
alone renders ITAR content-based.
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The District Court Improperly Looked To ITARs Purpose

To Determine Whether They Are Content-Based
As clarified by the Supreme Court, Government regulation of speech is

content based if a law applies to particular speech because of the topic discussed or
the idea or message expressed.4 Reed v. Town of Gilbert, 135 S. Ct. 2218, 2227
(2015). Therefore, regulation is content-based if it is content-based on its face
regardless of its purpose. Id. at 2228 (noting that an innocuous justification cannot
transform a facially content-based law into one that is content neutral).
ITAR is facially content-based because it applies only to speech about
technical data or defense articles both defined based on their content. See 22
C.F.R. 127.1. Information is considered technical data if it is about an item
listed on the USML but not if it is on another topic. See 22 C.F.R. 120.10(a)
(defining technical data as certain information relating to defense articles); 22
C.F.R. 121.1 (USML, listing defense articles). A webpage disclosing designs for
water tanks would not be covered, but a webpage disclosing designs for military
tanks would bebecause of the content of the webpage. Furthermore, there is an
exception for certain information concerning general scientific, mathematical, or
engineering principles commonly taught in schools. 22 C.F.R. 120.10(b).
Messages containing common engineering principles are excepted, but messages
4
The Court rejected the 9th Circuits approach of looking to the purpose of the regulation,
noting that [a] law that is content based on its face is subject to strict scrutiny regardless of the
government's benign motive, content-neutral justification, or lack of animus toward the ideas
contained in the regulated speech. Id. at 2228 (internal citations omitted).
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containing obscure engineering principles are not. That is also because of their
content. ITARs application to certain topics is sufficient to render it content-based.
135 S. Ct. at 2227 (Some facial distinctions based on a message are obvious,
defining regulated speech by particular subject matter).
The district court noted that on its face ITAR unquestionably regulates
speech concerning a specific topic. Defense Distributed v. United States Dept. of
State, Dkt. No. 32 at 13. However, it failed to see that fact as dispositive because it
misread Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989), in precisely the
same way as the Ninth Circuit did in Reed. Defense Distributed v. United States
Dept. of State, Dkt. No. 32 at 12. As the Court explained in Reed,
The Court of Appeals and the United States misunderstand
our decision in Ward as suggesting that a government's
purpose is relevant even when a law is content based on its
face. That is incorrect. Ward had nothing to say about
facially content-based restrictions because it involved a
facially content-neutral ban on the use, in a city-owned
music venue, of sound amplification systems not provided
by the city.
135 S. Ct. at 2228 (emphasis added). Accordingly, this Court should reverse the
holding that ITAR is content-neutral.
b.
Even If It Is Proper To Consider ITARs Purpose, Its

Purpose Is To Restrict Information Because Of Its Content
As explained above, the district court erred by looking to ITARs purpose to

determine whether it is content-based. It cited three cases to support its approach of
looking to a regulations purpose even when it is facially content-based: Renton v.
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Playtime Theatres, Inc., 475 U.S. 41(1986); Asgeirsson v. Abbott, 696 F. 3d 454 (5th
Cir. 2012); and Kagan v. City of New Orleans, 753 F.3d 560 (5th Cir. 2014).5 All
three cases predate Reed and should no longer be followed to the extent they conflict
with Reeds express holding that facially content-based regulations must meet strict
scrutiny regardless of their purpose.6 However, even if the cases cited by the lower
court are still good law, they do not counsel in favor of upholding ITAR because
ITARs purpose is to suppress the information contained in technical data about
defense articles because of its content.
All three cases cited by the district court inquire whether the governments
interest in regulating speech is due to the message it contains. In Renton, the Court
upheld a zoning ordinance that only applied to theaters showing sexually explicit
material. But it did so because the ordinance was aimed at reducing so-called
secondary effects, such as crime and lowered property values that accompany
such theaters rather than suppressing the message conveyed by sexually explicit
material. See Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47-48 (1986).
Similarly, this Court held in Asgeirsson that the Texas Open Meetings Act (TOMA)
was content-neutral because the purpose was to facilitate transparency by requiring
5
The district court also cited Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) and
McCullen v. Coakley, 134 S. Ct. 2518 (2014), but the Court looked to the regulations purpose in
those cases because the regulations were facially content-neutral. They are therefore consistent
with Reeds holding.
6
Other circuits have recognized that Reed rejected previous precedents concerning content
discrimination. See Cahaly v. Larosa, 796 F.3d 399, 405 (4th Cir. 2015); Norton v. City of
Springfield, 612 Fed. Appx. 386, 387 (7th Cir. 2015).
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a quorum of a governing body to discuss policy only at public meetings. See 696 F.
3d 454 at 461. Asgeirsson stressed that the purpose of TOMA was unrelated to the
suppression of messages expressed at closed meetings, just as the lower property
values and crime at issue in Renton were not a result of the sexually explicit
messages.7 Id. at 461-62. Thus, even if these cases are still good law, the Fifth
Circuits test of regulatory purpose is whether the harm from the regulated activity
is a result of the content of the message.
Likewise in Kagan, this Court upheld a licensing regime for tour guides,
again finding that the regime had no relationship to regulating messages because it
had no effect whatsoever on what a tour guide could say. See Kagan v. City of New
Orleans, 753 F.3d 560 at 562. All the examples of cases finding a facially contentbased regulation to be content-neutral did so because the harm from the speech was
not a result of its content.
Not so with ITAR. The government seeks to regulate the dissemination of
technical data because it considers that information harmful. Defense Distributed
v. United States Dept. of State, Dkt. No. 32 at 10, 15-CV-372-RP (W.D. Tex. June
This situation is analogous to Playtime Theatres, in which only adult movie theaters
attracted crime and lowered property values but not because the ideas or messages expressed in
adult movies caused crime Here, government is not made less transparent because of the
message of private speech about public policy: Transparency is furthered by allowing the public to
have access to government decisionmaking. This is true whether those decisions are made by
cogent empirical arguments or coin-flips. The private speech itself makes the government less
transparent regardless of its message. The statute is therefore content-neutral. Id. at 461-62.
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10, 2015). ITARs purpose and effect is to suppress information because of its
content. It is therefore content-based even if Reed does not apply.
B.
ITAR is an Unconstitutional Prior Restraint on Speech
In addition to being a content-based restriction, ITAR constitutes an

unconstitutional prior restraint. The State Departments solution to the broad and
blurry scope of its regulations is to require government approval before speech can
be put on the Internet. 22 C.F.R 120.4. Instead of providing clear limits to the
information that may not be discussed, the Department relies on the commodity
jurisdiction regime, in which it grants permission to speak if doubt exists. Id.
That is not a solution but rather a prior restraint on speechperhaps the most clearly
unconstitutional of all speech regulations. Southeastern Promotions, Ltd. v. Conrad,
420 US 546, 558-59 (1975) (The presumption against prior restraints is heavier
and the degree of protection broaderthan that against limits on expression
imposed by criminal penalties a free society prefers to punish the few who abuse
rights of speech after they break the law than to throttle them and all others
beforehand.).
The term prior restraint is used to describe administrative and judicial
orders forbidding certain communications when issued in advance of the time that
such communications are to occur. Alexander v. United States, 509 U.S. 544, 550
(1993). The commodity jurisdiction procedure does just that by requiring an
advance license to post information on the Internet.
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Due to the lack of clear standards in its definitions of defense articles and
technical data, citizens must often first submit their proposed speech for a
determination of whether the information is subject to the State Departments
license requirements for public speech. After the State Department claims the
speech is subject to the ITAR in a final commodity jurisdiction determination, the
citizens must then apply for a license to speak under an entirely separate Department
of State process. As the instant case demonstrates, the commodity jurisdiction
process can take years for a State Department determination of whether the speech
requires a license (as even the State Department has difficulty applying its own
standards). Thereafter, citizens, like Defense Distributed, must then still apply for
the license to speak, which can take several months or more to obtain under another
State Department process that does not contain any true deadline. In the meantime,
the free flow of ideas and research are halted. While the commodity jurisdiction
procedure may be constitutional when determining whether objects and weapons
may be exported, it is not constitutional when determining whether speech may be
posted on the Internet.
a.
Open-ended licensing
Open-ended licensing for speech is not permitted under the First Amendment.
The Supreme Court has continuously held that [I]n the area of free expression a
licensing statute placing unbridled discretion in the hands of a government official
or agency constitutes a prior restraint and may result in censorship. City of
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Lakewood v. Plain Dealer Publishing Co., 486 US 750, 757 (1988). The
government cannot vest restraining control over the right to speak in an
administrative official where there are no appropriate standards to guide his action.
Kunz v. New York, 340 U.S. 290, 295 (1951). Accordingly, standards governing
prior restraints must be narrow, objective and definite. Shuttlesworth v.
Birmingham, 394 U.S. 147, 151 (1969). Standards involving appraisal of facts, the
exercise of judgment, [or] the formation of an opinion are unacceptable. Forsyth
County v. Nationalist Movement, 505 U.S. 123, 131 (1992) (quotation omitted).
Given that the literal definitions of technical data and defense article are so
broad that they cover instructions on making steal or boat propellers, the open-ended
commodity jurisdiction procedure does not satisfy these requirements and may
therefore not be applied to speech.
b.
Lack of procedural safeguards
The commodity jurisdiction procedure is independently unconstitutional

because it lacks procedural safeguards against abuses of discretion. The following
procedural safeguards are required of even content-neutral prior restraints:
The burden of proving the speech may be regulated must rest on the censor;
The determination must be prompt; and
Judicial review must be available for all permit denials. Freedman v.
Maryland, 380 U.S. 51, 58 (1965) (Only a judicial determination in an
adversary proceeding ensures the necessary sensitivity to freedom of
expression.).
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None of these procedural safeguards are available here. The State Department
requires individuals to apply for permission to speak if doubt exists as to whether
their speech falls under ITAR. 22 C.F.R. 120.4(a). The determination can take
years. For example, the State Department only ruled on the Defense Distributeds
commodity jurisdiction request after being sued in this case, which was almost two
years after the requests were first submitted.8 Defense Distributed v. United States
Dept. of State, Dkt. No. 29, 15-CV-372-RP (W.D. Tex. June 8, 2015). And finally,
the underlying statute purports to make the designationof items as defense
articles unreviewable in court. 22 U.S.C. 2778(h).
The broad prohibition on prior restraints is no less applicable in the area of
national security. In New York Times v. United States, 403 U.S. 713 (1971), the
Supreme Court rejected the governments authority to stop the publication of the
Pentagon Papersclassified information pertaining to American military activities
in the then-ongoing Vietnam War. In the face of that decision, the State Department
cannot claim to have the authority to license the discussion of basic firearms,
engineering principles, or springs onlineeven if it would help prevent the Islamic
State from obtaining the latest in American deer rifle technology. 22 C.F.R. 121.1
Category I at (a) and (i). The district courts order should therefore be reversed.
In this matter, it is likely Defense Distributed would have never received a final
commodity jurisdiction, no less an opportunity to then apply for a license to speak, without the
filing of this case.
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ISSUING THE TEMPORARY INJUNCITON WILL NOT HARM THE

PUBLIC INTEREST
This is the unusual case in which there is no harm to grant Defense
Distributeds request for temporary injunction because the designs at issue are
already available on the Internet. Defense Distributeds designs were downloaded
more than 100,000 times before they were removed following the State
Departments threatened prosecution.9 The CAD files are now widely available on
the Internet, including on distributed file-sharing networks such as the Pirate Bay,
which are outside the reach of the State Department. 10 Therefore, ITARs
enforcement can do nothing to keep the designs out of the hands of foreign
militaries. They are already available to anyone who wants them. Further, that the
State Department has not threatened prosecution of anyone else who is distributing
the files suggests that this prior restraint also fails due to underinclusiveness.
Florida Star v. B.J.F., 491 U.S. 524, 540 (1989) (invalidating law due to
underinclusiveness).
The district court was therefore incorrect to rule in the Defendants favor on
the third and fourth prongs of the preliminary injunction inquiry because of the
9
Forbes, 3D-Printed Gun's Blueprints Downloaded 100,000 Times In Two Days (With
Some Help From Kim Dotcom), http://www.forbes.com/sites/andygreenberg/2013/05/08/3dprinted-guns-blueprints-downloaded-100000-times-in-two-days-with-some-help-from-kimdotcom/ (last visited December 9, 2015).
10
Defiant Pirate Bay to continue hosting banned 3D printer gun designs,
https://www.rt.com/news/liberator-gun-defcad-pirate-bay-122/ (last visited December 9, 2015).
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publics keen interest in restricting the export of defense articles. Defense

Distributed v. United States Dept. of State, Dkt. No. 29 at 6. At least with respect to
Plaintiffs as-applied challenge, that interest would not be affected by granting the
injunction.
As for Plaintiffs facial challenge against ITARs enforcement as a prior
restraint more generally, the Court should consider the availability of so much other
ITAR-controlled information when evaluating assertions of harm. As Justice White
pointed out in the context of denying the governments request to stop publication of
the Pentagon Papers,
Normally, publication will occur and the damage be done
before the Government has either opportunity or grounds
for suppression. So here, publication has already begun
and a substantial part of the threatened damage has already
occurred. The fact of a massive breakdown in security is
known, access to the documents by many unauthorized
people is undeniable, and the efficacy of equitable relief
against these or other newspapers to avert anticipated
damage is doubtful at best.
New York Times Co. v. United States, 403 US 713, 733 (1971) (White, J.,
concurring). Note also the contrast between the harm asserted in connection with the
Pentagon Papers and that in the instant case. In New York Times the government
south to stop publication of classified information about the then-ongoing Vietnam
War, asserting that its publication could jeopardize the war effort. Here, the
government seeks to stop the publication of unclassified information that can
already downloaded by anyone on Earth with a computer. And the information
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Document: 00513314528
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merely discloses how to make firearms that have many ready substitutes online. The
Court in New York Times held that the First Amendment could not tolerate such a
prior restraint. This Court should have an easier time doing the same.
CONCLUSION
The Court should reverse and remand to the district court with instruction to
issue the preliminary injunction.
Respectfully Submitted,
_________________________
ROBERT HENNEKE
[email protected]
JOEL STONEDALE
[email protected]
Texas Public Policy Foundation
Center for the American Future
901 Congress Avenue
Austin, TX 78701
PHONE: (512) 472-2700
FAX: (512 472-2728
Attorneys for Texas Public
Policy Foundation, as Amicus
Curiae for Defense Distributors
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Document: 00513314528
Page: 25
CERTIFICATE OF COMPLIANCE
1. This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B) because this brief contains 3,857 words, excluding the parts of the
brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
2. This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because
this brief has been prepared in a proportionately spaced typeface using
Microsoft Office Word in 14-point Times New Roman font.
3. All required privacy redactions have been made.
4. The ECF submission is an exact copy of the hard copy submissions, and
5. The digital submission has been scanned for viruses with the most recent
version Apple OS X Yosemite and according to that program, is free of
viruses.
_______________________________
ROBERT HENNEKE
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Document: 00513314528
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CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing with the Clerk of the
Court for the United States Court of Appeals for this Fifth Circuit by using the
appellate CM/ECF system in NO. 15-50759 on December 18, 2015.
I certify that all participants in the case are registered CM/ECF users and that
service will be accomplished by the appellate CM/ECF system.
_______________________________
ROBERT HENNEKE
17

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Case: 15-50759

Date Filed: 12/18/2015

Date Filed: 12/18/2015

Date Filed: 12/18/2015

CERTIFICATE OF INTERESTED PERSONS

Dated: December 18, 2015

Date Filed: 12/18/2015

REGULATORY BACKGROUND ... 1

ITAR VIOLATES THE FIRST AMENDMENT ..... 3

ITAR Is A Content-Based Restriction On Speech .. 4

The District Court Improperly Looked To The

Even If It Is Proper To Consider The ITARs

B. ITAR is an Unconstitutional Prior Restraint on Speech ........... 9

Lack of Procedural Safeguards ... 11

ISSUING THE TEMPORARY INJUNCTION WILL NOT HARM THE

Date Filed: 12/18/2015

CERTIFICATE OF COMPLIANCE ..... 16

Date Filed: 12/18/2015

Date Filed: 12/18/2015

Date Filed: 12/18/2015

STATEMENT OF AMICUS CURIAE

Date Filed: 12/18/2015

STATEMENT REGARDING ORAL ARGUMENT

Date Filed: 12/18/2015

Date Filed: 12/18/2015

defined broadly enough to encompass everyday technology not typically thought of

Date Filed: 12/18/2015

ITAR VIOLATES THE FIRST AMENDMENT

content-based restriction on speech. A speech restriction is content based if it

Date Filed: 12/18/2015

There can be no compelling government interest in restricting publication of

ITAR Is A Content-Based Restriction On Speech

ITAR only applies to technical data about defense articles. If someone

Date Filed: 12/18/2015

The District Court Improperly Looked To ITARs Purpose

As clarified by the Supreme Court, Government regulation of speech is

Date Filed: 12/18/2015

Even If It Is Proper To Consider ITARs Purpose, Its

As explained above, the district court erred by looking to ITARs purpose to

Date Filed: 12/18/2015

Date Filed: 12/18/2015

Date Filed: 12/18/2015

ITAR is an Unconstitutional Prior Restraint on Speech

In addition to being a content-based restriction, ITAR constitutes an

Date Filed: 12/18/2015

Date Filed: 12/18/2015

Lack of procedural safeguards

The commodity jurisdiction procedure is independently unconstitutional

Date Filed: 12/18/2015

Date Filed: 12/18/2015

ISSUING THE TEMPORARY INJUNCITON WILL NOT HARM THE

Date Filed: 12/18/2015

publics keen interest in restricting the export of defense articles. Defense

Date Filed: 12/18/2015

Date Filed: 12/18/2015

Dated: December 18, 2015

Date Filed: 12/18/2015

Dated: December 18, 2015

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