And then, on Aug. 1, the book was put up for sale on Amazon.com — an apparent attempt to circumvent the judge’s order.
“Code is speech,” the apparent author, CJ Awelow, wrote in a brief description on Amazon, echoing the legal argument made by Defense Distributed. “Proceeds will be used to fight for free speech and the right to bear arms.”
The free-speech exercise didn’t last long. Amazon removed the book Wednesday for “violating our content guidelines,” a spokesman confirmed to The Washington Post. He declined to elaborate on exactly what guidelines the book violated or whether the decision to remove it was related to the temporary restraining order. (Amazon’s founder, Jeffrey P. Bezos, owns The Washington Post.)
Though it was short-lived, the stunt served as yet another showing of solidarity with Defense Distributed amid its ongoing legal battle against more than a dozen states, which argue that the publication of code to produce downloadable, 3-D-printable weapons is a public safety risk. The states argue that the plastic guns, which are without serial numbers and therefore untraceable, would skirt various gun regulations. But Defense Distributed and its supporters argue that blocking the computer code for the weapons amounts to a First Amendment violation — whether that code is published on the Internet or, for example, in a book on Amazon.
Wilson’s arguments will be put to the test as soon as Monday, when U.S. District Judge Robert S. Lasnik in Seattle is expected to decide whether to issue an injunction against the publication of Defense Distributed’s blueprints for 3-D-printable guns. The states are seeking a permanent injunction. The states have also sued the State Department, arguing that a recent settlement agreement between the department and Defense Distributed that initially allowed the files to be posted to the Internet violated the Administrative Procedure Act. The agreement resulted from prior litigation.
It’s not a clear-cut case, experts told The Post. Lasnik will have to weigh whether the states’ public-safety concerns are strong enough to trump Wilson’s First Amendment protections. To do that, the judge would also have to decide whether Wilson’s computer code really is “speech” — a largely unsettled legal question that may challenge the boundaries of the First Amendment as it is traditionally understood.
Neil Richards, a professor at Washington University School of Law in St. Louis specializing in information law, told The Post that asking a judge to decide a question of whether code acts as speech could present collateral consequences as technology continues to evolve. Because our world revolves so heavily around digital code, he said, “asking if code is speech is like asking if everything is speech,” which the First Amendment was not designed for, he said.
“What this case shows is that digital technologies are asking questions of constitutional law that don’t have clear answers,” he said. “This is just another illustration of the fact that digital technologies don’t just destabilize or disrupt industries, they destabilize and disrupt settled legal expectations, and they require us to think carefully about how we apply the law to technology.”
Judges have previously decided that code is speech even in the face of claims of “national security threats” from the federal government, particularly during the “Crypto Wars” of the 1990s, when the federal government sought to block online publication of encryption code.
The first time was in 1996, when a federal judge in California ruled in favor of a mathematician named Daniel Bernstein who sought to share his encryption code on the Internet.
“This court can find no meaningful difference between computer language . . . and German or French. . . . Like music and mathematical equations, computer language is just that, language, and it communicates information either to a computer or to those who can read it,” wrote U.S. District Judge Marilyn Hall Patel.
Adam Thierer, who specializes in the intersection of free speech and technology at George Mason University’s Mercatus Center, said the debate over the computer code for the 3-D-printable guns is the same song he heard during the Crypto Wars — but more like a remix. Guns, of course, pose different risks than encryption technology. Thierer said he thinks the Defense Distributed code is almost certainly speech, but the question is whether the government can demonstrate a compelling interest to regulate it.
The problem with the states’ argument, he contended, is that it would be a “stretch” for the judge to decide that the computer code itself skirts the states’ gun laws, as those laws generally center on possession of actual guns. It would be easier for the states to regulate 3-D-printed guns themselves through new laws, he said, rather than seeking to regulate the code that creates them.
“They would have to make the argument that the speech itself is essentially the device,” he said. “Nothing is stopping them from regulating firearms. But the underlying speech is not in their purview. There has to be a distinction made between the speech and the byproduct of speech.”
On Tuesday, Lasnik said he believed “a solution to the greater problem” in this case was better suited for Congress or the president to answer, rather than the court.