     Case: 15-50759   Document: 00513686006     Page: 1   Date Filed: 09/20/2016




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT    United States Court of Appeals
                                                                       Fifth Circuit

                                                                      FILED
                                                                September 20, 2016
                                 No. 15-50759
                                                                   Lyle W. Cayce
                                                                        Clerk
DEFENSE DISTRIBUTED; SECOND AMENDMENT FOUNDATION,
INCORPORATED,

             Plaintiffs - Appellants

v.

UNITED STATES DEPARTMENT 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




                Appeal from the United States District Court
                     for the Western District of Texas


Before DAVIS, JONES, and GRAVES, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
      Plaintiffs-Appellants Defense Distributed and Second Amendment
Foundation, Inc. have sued Defendants-Appellees, the United States
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                                       No. 15-50759
Department of State, the Secretary of State, the DDTC, and various agency
employees      (collectively,    the   “State     Department”),       seeking     to   enjoin
enforcement of certain laws governing the export of unclassified technical data
relating to prohibited munitions. Because the district court concluded that the
public interest in national security outweighs Plaintiffs-Appellants’ interest in
protecting their constitutional rights, it denied a preliminary injunction, and
they timely appealed. We conclude the district court did not abuse its discretion
and therefore affirm.

                                        I.    Background
       Defense Distributed is a nonprofit organization operated, in its own
words, “for the purpose of promoting popular access to arms guaranteed by the
United States Constitution” by “facilitating global access to, and the
collaborative production of, information and knowledge related to the 3D
printing of arms; and by publishing and distributing such information and
knowledge on the Internet at no cost to the public.” Second Amendment
Foundation, Inc. is a nonprofit devoted more generally to promoting Second
Amendment rights.
       Defense Distributed furthers its goals by creating computer files used to
create weapons and weapon parts, including lower receivers for AR-15 rifles. 1
The lower receiver is the part of the firearm to which the other parts are
attached. It is the only part of the rifle that is legally considered a firearm
under federal law, and it ordinarily contains the serial number, which in part
allows law enforcement to trace the weapon. Because the other gun parts, such
as the barrel and magazine, are not legally considered firearms, they are not


       1  The district court capably summarized the facts in its memorandum opinion and
order. See Def. Distributed v. U.S. Dep’t of State, 121 F. Supp. 3d 680, 686-88 (W.D. Tex.
2015). The facts set out in this opinion come largely from the district court’s opinion and the
parties’ briefs.
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                                  No. 15-50759
regulated as such. Consequently, the purchase of a lower receiver is restricted
and may require a background check or registration, while the other parts
ordinarily may be purchased anonymously.
      The law provides a loophole, however: anyone may make his or her own
unserialized, untraceable lower receiver for personal use, though it is illegal to
transfer such weapons in any way. Typically, this involves starting with an
“80% lower receiver,” which is simply an unfinished piece of metal that looks
quite a bit like a lower receiver but is not legally considered one and may
therefore be bought and sold freely. It requires additional milling and other
work to turn into a functional lower receiver. Typically this would involve using
jigs (milling patterns), a drill press, other tools, and some degree of machining
expertise to carefully complete the lower receiver. The result, combined with
the other, unregulated gun parts, is an unserialized, untraceable rifle.
      Defense Distributed’s innovation was to create computer files to allow
people to easily produce their own weapons and weapon parts using relatively
affordable and readily available equipment. Defense Distributed has explained
the technologies as follows:
      Three-dimensional (“3D”) printing technology allows a computer to
      “print” a physical object (as opposed to a two-dimensional image
      on paper). Today, 3D printers are sold at stores such as Home
      Depot and Best Buy, and the instructions for printing everything
      from jewelry to toys to car parts are shared and exchanged freely
      online at sites like GrabCAD.com and Thingiverse.com. Computer
      numeric control (“CNC”) milling, an older industrial technology,
      involves a computer directing the operation of a drill upon an
      object. 3D printing is “additive;” using raw materials, the printer
      constructs a new object. CNC milling is “subtractive,” carving
      something (more) useful from an existing object.

      Both technologies require some instruction set or “recipe”—in the
      case of 3D printers, computer aided design (“CAD”) files, typically



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                                        No. 15-50759
      in .stl format; for CNC machines, text files setting out coordinates
      and functions to direct a drill. 2

      Defense Distributed’s files allow virtually anyone with access to a 3D
printer to produce, among other things, Defense Distributed’s single-shot
plastic pistol called the Liberator and a fully functional plastic AR-15 lower
receiver. In addition to 3D printing files, Defense Distributed also sells its own
desktop CNC mill marketed as the Ghost Gunner, as well as metal 80% lower
receivers. With CNC milling files supplied by Defense Distributed, Ghost
Gunner operators are able to produce fully functional, unserialized, and
untraceable metal AR-15 lower receivers in a largely automated fashion.
      Everything discussed above is legal for United States citizens and will
remain legal for United States citizens regardless of the outcome of this case.
This case concerns Defense Distributed’s desire to share all of its 3D printing
and CNC milling files online, available without cost to anyone located
anywhere in the world, free of regulatory restrictions.
      Beginning in 2012, Defense Distributed posted online, for free download
by anyone in the world, a number of computer files, including those for the
Liberator pistol (the “Published Files”). On May 8, 2013, the State Department
sent a letter to Defense Distributed requesting that it remove the files from the
internet on the ground that sharing them in that manner violates certain laws.
The district court summarized the relevant statutory and regulatory
framework as follows:
      Under the Arms Export Control Act (“AECA”), “the President is
      authorized to control the import and the export of defense articles
      and defense services” and to “promulgate regulations for the
      import and export of such articles and services.” 22 U.S.C. §
      2778(a)(1). The AECA imposes both civil and criminal penalties for
      violation of its provisions and implementing regulations, including


      2   Plaintiffs-Appellants’ Original Brief on Appeal.
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                                          No. 15-50759
         monetary fines and imprisonment. Id. § 2278(c) & (e). The
         President has delegated his authority to promulgate implementing
         regulations to the Secretary of State. Those regulations, the
         International Traffic in Arms Regulation (“ITAR”), are in turn
         administered by the DDTC [Directorate of Defense Trade
         Controls] and its employees. 22 C.F.R. 120.1(a).

         The AECA directs that the “defense articles” designated under its
         terms constitute the United States “Munitions List.” 22 U.S.C. §
         2778(a)(1). The Munitions List “is not a compendium of specific
         controlled items,” rather it is a “series of categories describing the
         kinds of items” qualifying as “defense articles.” United States v.
         Zhen Zhou Wu, 711 F.3d 1, 12 (1st Cir.) cert. denied sub nom.
         Yufeng Wei v. United States, –––U.S. ––––, 134 S. Ct. 365, 187 L.
         Ed. 2d 160 (2013). Put another way, the Munitions List contains
         “attributes rather than names.” United States v. Pulungan, 569
         F.3d 326, 328 (7th Cir. 2009) (explaining “an effort to enumerate
         each item would be futile,” as market is constantly changing). The
         term “defense articles” also specifically includes “technical data
         recorded or stored in any physical form, models, mockups or other
         items that reveal technical data directly relating to items
         designated in” the Munitions List. 22 C.F.R. § 120.6

         A party unsure about whether a particular item is a “defense
         article” covered by the Munitions List may file a “commodity
         jurisdiction” request with the DDTC. See 22 C.F.R. § 120.4
         (describing process). The regulations state the DDTC “will provide
         a preliminary response within 10 working days of receipt of a
         complete request for commodity jurisdiction.” Id. § 120.4(e). If a
         final determination is not provided after 45 days, “the applicant
         may request in writing to the Director, Office of Defense Trade
         Controls Policy that this determination be given expedited
         processing.” Id. 3

         In short, the State Department contended: (1) the Published Files were
potentially related to ITAR-controlled “technical data” relating to items on the
USML; (2) posting ITAR-controlled files on the internet for foreign nationals



         3   See Def. Distributed v. U.S. Dep’t of State, 121 F. Supp. 3d 680, 687-88 (W.D. Tex.
2015).
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                                       No. 15-50759
to download constitutes “export”; and (3) Defense Distributed therefore must
obtain prior approval from the State Department before “exporting” those files.
Defense Distributed complied with the State Department’s request by taking
down the Published Files and seeking commodity jurisdiction requests for
them. It did eventually obtain approval to post some of the non-regulated files,
but all of the Published Files continue to be shared online on third party sites
like The Pirate Bay.
       Since then, Defense Distributed has not posted any new files online.
Instead, it is seeking prior approval from the State Department and/or DDTC
before doing so, and it has not obtained such approval. The new files Defense
Distributed seeks to share online include the CNC milling files required to
produce an AR-15 lower receiver with the Ghost Gunner and various other 3D
printed weapons or weapon parts.

                            District Court Proceedings
       In the meantime, Defense Distributed and Second Amendment
Foundation, Inc., sued the State Department, seeking to enjoin them from
enforcing the regulations discussed above. Plaintiffs-Appellants argue that the
State Department’s interpretation of the AECA, through the ITAR regulations,
constitutes an unconstitutional prior restraint on protected First Amendment
speech, to wit, the 3D printing and CNC milling files they seek to place online. 4
They also claim violations of the Second and Fifth Amendments. Plaintiffs-
Appellants’ challenges to the regulatory scheme are both facial and as applied,
and they ultimately seek a declaration that no prepublication approval is




       4   The State Department does not restrict the export of the Ghost Gunner machine
itself or the user manual, only the specific CNC milling files used to produce the AR-15 lower
receivers with it, as well as all 3D printing files used to produce prohibited weapons and
weapon parts.
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                                    No. 15-50759
needed for privately generated unclassified information, whether or not that
data may constitute “technical data” relating to items on the USML.
      Plaintiffs-Appellants sought a preliminary injunction against the State
Department, essentially seeking to have the district court suspend
enforcement of ITAR’s prepublication approval requirement pending final
resolution of this case. The district court denied the preliminary injunction,
and Plaintiffs-Appellants timely filed this appeal. We review the denial of a
preliminary injunction for abuse of discretion, but we review any questions of
law de novo. 5
      To obtain a preliminary injunction, the applicant must show (1) a
      substantial likelihood that he will prevail on the merits, (2) a
      substantial threat that he will suffer irreparable injury if the
      injunction is not granted, (3) that his threatened injury outweighs
      the threatened harm to the party whom he seeks to enjoin, and (4)
      that granting the preliminary injunction will not disserve the
      public interest. “We have cautioned repeatedly that a preliminary
      injunction is an extraordinary remedy which should not be granted
      unless the party seeking it has ‘clearly carried the burden of
      persuasion’ on all four requirements.” 6

      We have long held that satisfying one requirement does not necessarily
affect the analysis of the other requirements. In Southern Monorail Co. v.
Robbins & Myers, Inc., 666 F.2d 185 (5th Cir. Unit B 1982), for example, the
district court had denied a preliminary injunction solely because it found that
the movant, Robbins & Myers, failed to satisfy the balance of harm
requirement. On appeal, Robbins & Myers argued that it had clearly shown a
substantial likelihood of success on the merits, and satisfying that requirement
should give rise to a presumption of irreparable harm and a presumption that
the balance of harm tipped in its favor. We disagreed:


      5  PCI Transp., Inc. v. Fort Worth & W. R. Co., 418 F.3d 535, 545 (5th Cir. 2005)
(footnotes omitted)
       6 Id.

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                                    No. 15-50759
      Because we dispose of this case on the balance of harm question,
      we need not decide and we express no views upon whether a
      presumption of irreparable injury as a matter of law is appropriate
      once a party demonstrates a substantial likelihood of success on
      the merits of an infringement claim. In other words, even
      assuming arguendo that Robbins & Myers has shown a substantial
      likelihood of success on the merits of its infringement claim and
      that irreparable injury should be presumed from such a showing
      (two issues not addressed by the district court in this case), we still
      uphold the district court’s decision, which rested solely on the
      balance of harm factor. We agree that Robbins & Myers has failed
      to carry its burden of showing that the threatened harm to it from
      the advertisement outweighs the harm to Southern Monorail from
      the intercept. In addition, we expressly reject Robbins & Myers’
      suggestion that we adopt a rule that the balance of harm factor
      should be presumed in the movant's favor from a demonstration of
      a substantial likelihood of success on the merits of an infringement
      claim. Such a presumption of the balance of harm factor would not
      comport with the discretionary and equitable nature of the
      preliminary injunction in general and of the balance of harm factor
      in particular. See Ideal Industries, Inc. v. Gardner Bender, Inc.,
      612 F.2d 1018, 1026 (7th Cir. 1979), cert. denied, 447 U.S. 924, 100
      S. Ct. 3016, 65 L. Ed. 2d 1116 (1980) (district court obligated to
      weigh relative hardship to parties in relation to decision to grant
      or deny preliminary injunction, even when irreparable injury
      shown). 7

      The district court concluded that the preliminary injunction should be
denied because Plaintiffs-Appellants failed to satisfy the balance of harm and
public interest requirements, which do not concern the merits. (Assuming
without deciding that Plaintiffs-Appellants have suffered the loss of First and
Second Amendment freedoms, they have satisfied the irreparable harm
requirement because any such loss, however intangible or limited in time,




      7   Id. at 187-88.
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constitutes irreparable injury. 8) In extensive dicta comprising nearly two-
thirds of its memorandum opinion, the district court also concluded that
Plaintiffs-Appellants failed to show a likelihood of success on the merits.
Plaintiffs-Appellants timely appealed, asserting essentially the same
arguments on appeal. Plaintiffs-Appellants continue to bear the burden of
persuasion on appeal.

                                         Analysis
       Because the district court held that Plaintiffs-Appellants only satisfied
the irreparable harm requirement, they may obtain relief on appeal only if they
show that the district court abused its discretion on all three of the other
requirements. The district court denied the preliminary injunction based on its
finding that Plaintiffs-Appellants failed to meet the two non-merits
requirements by showing that (a) the threatened injury to them outweighs the
threatened harm to the State Department, and (b) granting the preliminary
injunction will not disserve the public interest. The court only addressed the
likelihood of success on the merits as an additional reason for denying the
injunction. Because we conclude the district court did not abuse its discretion
on its non-merits findings, we decline to address the merits requirement.
       The crux of the district court’s decision is essentially its finding that the
government’s exceptionally strong interest in national defense and national
security outweighs Plaintiffs-Appellants’ very strong constitutional rights
under these circumstances. Before the district court, as on appeal, Plaintiffs-
Appellants failed to give any weight to the public interest in national defense
and national security, as the district court noted:



       8 See Def. Distributed, 121 F. Supp. 3d at 689 (citing Elrod v. Burns, 427 U.S. 347,
373, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976); Palmer v. Waxahachie Indep. Sch. Dist., 579 F.3d
502, 506 (5th Cir. 2009); Ezell v. City of Chicago, 651 F.3d 684, 699 (7th Cir. 2011)).
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                                  No. 15-50759
      Plaintiffs rather summarily assert the balance of interests tilts in
      their favor because “[I]t is always in the public interest to prevent
      the violation of a party’s constitutional rights.” Awad v. Ziriax, 670
      F.3d 1111, 1132 (10th Cir. 2012); see also Jackson Women’s Health
      Org. v. Currier, 760 F.3d 448, 458 n. 9 (5th Cir. 2014) (district court
      did not abuse its discretion in finding injunction would not disserve
      public interest because it will prevent constitutional
      deprivations). 9

      Ordinarily, of course, the protection of constitutional rights would be the
highest public interest at issue in a case. That is not necessarily true here,
however, because the State Department has asserted a very strong public
interest in national defense and national security. Indeed, the State
Department’s stated interest in preventing foreign nationals—including all
manner of enemies of this country—from obtaining technical data on how to
produce weapons and weapon parts is not merely tangentially related to
national defense and national security; it lies squarely within that interest.
      In the State Department’s interpretation, its ITAR regulations directly
flow from the AECA and are the only thing preventing Defense Distributed
from “exporting” to foreign nationals (by posting online) prohibited technical
data pertaining to items on the USML. Plaintiffs-Appellants disagree with the
State Department’s interpretation, but that question goes to the merits.
      Because Plaintiffs-Appellants’ interest in their constitutional rights and
the State Department’s interest in national defense and national security are
both public interests, the district court observed that “[i]n this case, the inquiry
[on these two requirements] essentially collapses.” 10 It reasoned:
      While Plaintiffs’ assertion of a public interest in protection of
      constitutional rights is well-taken, it fails to consider the public’s
      keen interest in restricting the export of defense articles. See
      Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24–25, 129 S.


      9   Id. at 689.
      10   Id.
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                                      No. 15-50759
      Ct. 365, 172 L. Ed. 2d 249 (2008) (discussing failure of district
      court to consider injunction’s adverse impact on public interest in
      national defense); Am. Civil Liberties Union v. Clapper, 785 F.3d
      787, 826 (2nd Cir. 2015) (characterizing maintenance of national
      security as “public interest of the highest order”). It also fails to
      account for the interest—and authority—of the President and
      Congress in matters of foreign policy and export. See Haig v. Agee,
      453 U.S. 280, 292, 101 S. Ct. 2766, 69 L. Ed. 2d 640 (1981) (matters
      relating to conduct of foreign relations “are so exclusively
      entrusted to the political branches of government as to be largely
      immune from judicial inquiry or interference”); United States v.
      Pink, 315 U.S. 203, 222–23, 62 S. Ct. 552, 86 L. Ed. 796 (1942)
      (conduct of foreign relations “is committed by the Constitution to
      the political departments of the Federal Government”); Spectrum
      Stores, Inc. v. Citgo Petroleum Corp., 632 F.3d 938, 950 (5th Cir.
      2011) (matters implicating foreign relations and military affairs
      generally beyond authority of court’s adjudicative powers).

      As to Plaintiff’s second contention, that an injunction would not
      bar Defendants from controlling the export of classified
      information, it is significant that Plaintiffs maintain the posting of
      files on the Internet for free download does not constitute “export”
      for the purposes of the AECA and ITAR. But Defendants clearly
      believe to the contrary. Thus, Plaintiffs’ contention that the grant
      of an injunction permitting them to post files that Defendants
      contend are governed by the AECA and ITAR would not bar
      Defendants from controlling “export” of such materials stand in
      sharp [contrast] to Defendants’ assertion of the public interest. The
      Court thus does not believe Plaintiffs have met their burden as to
      the final two prongs necessary for granting Plaintiffs a preliminary
      injunction. Nonetheless, in an abundance of caution, the Court will
      turn to the core of Plaintiffs’ motion for a preliminary injunction,
      whether they have shown a likelihood of success on their
      claims[.] 11

      Plaintiffs-Appellants suggest the district court disregarded their
paramount interest in protecting their constitutional rights. That is not so. The
district court’s decision was based not on discounting Plaintiffs-Appellants’


      11   Id. at 689-90.
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                                 No. 15-50759
interest but rather on finding that the public interest in national defense and
national security is stronger here, and the harm to the government is greater
than the harm to Plaintiffs-Appellants. We cannot say the district court abused
its discretion on these facts.
      Because both public interests asserted here are strong, we find it most
helpful to focus on the balance of harm requirement, which looks to the relative
harm to both parties if the injunction is granted or denied. If we affirm the
district court’s denial, but Plaintiffs-Appellants eventually prove they are
entitled to a permanent injunction, their constitutional rights will have been
violated in the meantime, but only temporarily. Plaintiffs-Appellants argue
that this result is absurd because the Published Files are already available
through third party websites such as the Pirate Bay, but granting the
preliminary injunction sought by Plaintiffs-Appellants would allow them to
share online not only the Published Files but also any new, previously
unpublished files. That leads us to the other side of the balance of harm
inquiry.
      If we reverse the district court’s denial and instead grant the preliminary
injunction, Plaintiffs-Appellants would legally be permitted to post on the
internet as many 3D printing and CNC milling files as they wish, including
the Ghost Gunner CNC milling files for producing AR-15 lower receivers and
additional 3D-printed weapons and weapon parts. Even if Plaintiffs-
Appellants eventually fail to obtain a permanent injunction, the files posted in
the interim would remain online essentially forever, hosted by foreign websites
such as the Pirate Bay and freely available worldwide. That is not a far-fetched
hypothetical: the initial Published Files are still available on such sites, and
Plaintiffs-Appellants have indicated they will share additional, previously
unreleased files as soon as they are permitted to do so. Because those files
would never go away, a preliminary injunction would function, in effect, as a
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                                       No. 15-50759
permanent injunction as to all files released in the interim. Thus, the national
defense and national security interest would be harmed forever. The fact that
national security might be permanently harmed while Plaintiffs-Appellants’
constitutional rights might be temporarily harmed strongly supports our
conclusion that the district court did not abuse its discretion in weighing the
balance in favor of national defense and national security.
       In sum, we conclude that the district court did not abuse its discretion in
denying Plaintiffs-Appellants’ preliminary injunction based on their failure to
carry their burden of persuasion on two of the three non-merits requirements
for preliminary injunctive relief, namely the balance of harm and the public
interest. We therefore affirm the district court’s denial and decline to reach the
question of whether Plaintiffs-Appellants have demonstrated a substantial
likelihood of success on the merits. 12


       12  The dissent disagrees with this opinion’s conclusion that the balance of harm and
public interest factors favor the State Department such that Plaintiffs-Appellants’ likelihood
of success on the merits could not change the outcome. The dissent argues that we “should
have held that the domestic internet publication” of the technical data at issue presents no
“immediate danger to national security, especially in light of the fact that many of these files
are now widely available over the Internet and that the world is awash with small arms.”
         We note the following: (1) If Plaintiffs-Appellants’ publication on the Internet were
truly domestic, i.e., limited to United States citizens, there is no question that it would be
legal. The question presented in this case is whether Plaintiffs-Appellants may place such
files on the Internet for unrestricted worldwide download. (2) This case does not concern only
the files that Plaintiffs-Appellants previously made available online. Plaintiffs-Appellants
have indicated their intent to make many more files available for download as soon as they
are legally allowed to do so. Thus, the bulk of the potential harm has not yet been done but
could be if Plaintiffs-Appellants obtain a preliminary injunction that is later determined to
have been erroneously granted. (3) The world may be “awash with small arms,” but it is not
yet awash with the ability to make untraceable firearms anywhere with virtually no technical
skill. For these reasons and the ones we set out above, we remain convinced that the potential
permanent harm to the State Department’s strong national security interest outweighs the
potential temporary harm to Plaintiffs-Appellants’ strong First Amendment interest.
        As to the dissent’s extensive discussion of Plaintiffs-Appellants’ likelihood of success
on the merits of the First Amendment issue, we take no position. Even a First Amendment
violation does not necessarily trump the government’s interest in national defense. We simply
hold that Plaintiffs-Appellants have not carried their burden on two of the four requirements
for a preliminary injunction: the balance of harm and the public interest.
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                                  No. 15-50759
      We are mindful of the fact that the parties and the amici curiae in this
case focused on the merits, and understandably so. This case presents a
number of novel legal questions, including whether the 3D printing and/or
CNC milling files at issue here may constitute protected speech under the First
Amendment, the level of scrutiny applicable to the statutory and regulatory
scheme here, whether posting files online for unrestricted download may
constitute “export,” and whether the ITAR regulations establish an
impermissible prior restraint scheme. These are difficult questions, and we
take no position on the ultimate outcome other than to agree with the district
court that it is not yet time to address the merits.
      On remand, the district court eventually will have to address the merits,
and it will be able to do so with the benefit of a more fully developed record.
The amicus briefs submitted in this case were very helpful and almost all
supported Plaintiffs-Appellants’ general position. Given the importance of the
issues presented, we may only hope that amici continue to provide input into
the broader implications of this dispute.

                                  Conclusion
      For the reasons set out above, we conclude that the district court did not
abuse its discretion by denying the preliminary injunction on the non-merits
requirements. AFFIRMED.




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                                   No. 15-50759
JONES, Circuit Judge, dissenting:
      This case poses starkly the question of the national government’s power
to impose a prior restraint on the publication of lawful, unclassified, not-
otherwise-restricted technical data to the Internet under the guise of
regulating the “export” of “defense articles.” I dissent from this court’s failure
to treat the issues raised before us with the seriousness that direct
abridgements of free speech demand.
                                          I.
      From late 2012 to early 2013, plaintiff Defense Distributed posted on the
Internet, free of charge, technical information including computer assisted
design files (CAD files) about gun-related items including a trigger guard, two
receivers, an ArmaLite Rifle-15 magazine, 1 and a handgun named “The
Liberator.”   None of the published information was illegal, classified for
national security purposes, or subject to contractual or other distribution
restrictions. In these respects the information was no different from technical
data available through multiple Internet sources from widely diverse
publishers. From scientific discussions to popular mechanical publications to
personal blog sites, information about lethal devices of all sorts, or
modifications to commercially manufactured firearms and explosives, is
readily available on the Internet.
      What distinguished Defense Distributed’s information at that time,
however, was its computer files designed for 3D printer technology that could
be used to “print” parts and manufacture, with the proper equipment and
know-how, a largely plastic single-shot handgun. The Liberator technology


      1  The ArmaLite Rifle, design 15 is rifle platform commonly abbreviated AR-15, a
registered trademark of Colt’s Inc. AR-15, Registration No. 0,825,581.

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                                     No. 15-50759
drew considerable press attention 2 and the relevant files were downloaded
“hundreds of thousands of times.” In May 2013, Defense Distributed received
a warning letter from the U.S. State Department stating in pertinent part:
      DDTC/END is conducting a review of technical data made publicly
      available by Defense Distributed through its 3D printing website,
      DEFCAD.org, the majority of which appear to be related to items
      in Category I of the USML. Defense Distributed may have
      released ITAR-controlled technical data without the required prior
      authorization from the Directorate of Defense Trade Controls
      (DDTC), a violation of the ITAR.

      Pursuant to §127.1 of the ITAR, it is unlawful to export any
      defense article or technical data for which a license or written
      approval is required without first obtaining the required
      authorization from the DDTC. Please note that disclosing
      (including oral or visual disclosure) or transferring technical data
      to a foreign person, whether in the United States or abroad, is
      considered an export under §120.17 of the ITAR.

The letter then advised Defense Distributed that it must “remove [its
information] from public access” immediately, pending its prompt request for
and receipt of approval from DDTC.
      In a nearly forty-year history of munitions “export” controls, the State
Department had never sought enforcement against the posting of any kind of
files on the Internet. Because violations of the cited regulations carry severe
civil and criminal penalties, 3 Defense Distributed had no practical choice but
to remove the information and seek approval to publish from DDTC. It took



      2 According to Defense Distributed, the Liberator files were covered, inter alia, by
Forbes, CNN, NBC News, and the Wall Street Journal.

      3  Fines may exceed a million dollars and imprisonment, for violations premised on
specific intent to violate, up to twenty years. 28 U.S.C. § 2778(c); United States v.
Covarrubias, 94 F.3d 172 (5th Cir. 1996).
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                                        No. 15-50759
the government entities two years to refuse to exempt most of the files from
the licensing regime.
       Defense Distributed filed suit in federal court to vindicate, inter alia, its
First Amendment right to publish without prior restraint 4 and sought the
customary relief of a temporary injunction to renew publication. This appeal
stems from the district court’s denial of relief. Undoubtedly, the denial of a
temporary injunction in this case will encourage the State Department to
threaten and harass publishers of similar non-classified information. There is
also little certainty that the government will confine its censorship to Internet
publication. Yet my colleagues in the majority seem deaf to this imminent
threat to protected speech. More precisely, they are willing to overlook it with
a rote incantation of national security, an incantation belied by the facts here
and nearly forty years of contrary Executive Branch pronouncements.
       This preliminary injunction request deserved our utmost care and
attention. Interference with First Amendment rights for any period of time,
even for short periods, constitutes irreparable injury.                     Elrod v. Burns,
427 U.S. 347, 373, 96 S. Ct. 2673, 2690 (1976) (citing New York Times Co. v.
United States, 403 U.S. 713, 91 S. Ct. 2140 (1971)); Opulent Life Church v.
City of Holly Springs, Miss., 697 F.3d 279, 295–97 (5th Cir. 2012). Defense
Distributed has been denied publication rights for over three years.                         The
district court, moreover, clearly erred in gauging the level of constitutional
protection to which this speech is entitled:                     intermediate scrutiny is



       4 To simplify discussion, I refer to Defense Distributed as the plaintiff, but it is joined
in litigation by the Second Amendment Foundation, and its arguments are adopted and
extended by numerous amici curiae. Believing that the deprivation of a merits opinion is
most critical to Defense Distributed’s First Amendment claim, I do not discuss the plaintiffs’
other non-frivolous claims premised on ultra vires, the Second Amendment and procedural
due process.
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                                       No. 15-50759
inappropriate for the content-based restriction at issue here.                    (Why the
majority is unwilling to correct this obvious error for the sake of the lower
court’s getting it right on remand is a mystery).
       The district court’s mischaracterization of the standard of scrutiny
fatally affected its approach to the remaining prongs of the test for preliminary
injunctive relief.     Without a proper assessment of plaintiff’s likelihood of
success on the merits—arguably the most important of the four factors
necessary to grant a preliminary injunction, Tesfamichael v. Gonzales,
411 F.3d 169, 176 (5th Cir. 2005)—the district court’s balancing of harms went
awry. 5 We should have had a panel discussion about the government’s right
to censor Defense Distributed’s speech.
       Since the majority are close to missing in action, and for the benefit of
the district court on remand, I will explain why I conclude that the State
Department’s application of its “export” control regulations to this domestic
Internet posting appears to violate the governing statute, represents an
irrational interpretation of the regulations, and violates the First Amendment
as a content-based regulation and a prior restraint.




       5 See Tex. v. Seatrain Int’l, S.A., 518 F.2d 175, 180 (5th Cir. 1975) (“none of the four
prerequisites has a fixed quantitative value. Rather, a sliding scale is utilized, which takes
into account the intensity of each in a given calculus.”). Southern Monorail Co. v. Robbins &
Myers, Inc., 666 F.2d 185 (5th Cir. 1982), is the only case relied upon by the majority for the
proposition that we may dispense with addressing the likelihood of success on the merits if
we conclude that the parties have not satisfied one of the other elements of the test for
granting a preliminary injunction. That case is distinguishable. First, Southern Monorail
was a private action concerning trademark infringement, not a case involving a claim of the
invasion of constitutional rights by the federal government. See id. at 185–86. Second, “the
district court denied the injunction solely on the basis of the third factor, concerning the
balance of harm.” Id. at 186 (emphasis added). In this case, by contrast, the district court
addressed each of the preliminary injunction factors, thus allowing us to consider its
resolution of each factor.
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                                  No. 15-50759
                                       II.
A.     Regulatory Framework
       The Arms Export Control Act of 1976 (“AECA”) authorizes the President
to “control the import and the export of defense articles and defense services.”
22 U.S.C. § 2778(a)(1). The President “is authorized to designate those items
which shall be considered as defense articles and defense services . . . and to
promulgate regulations for the import and export of such articles and services.”
Id. “The items so designated shall constitute the United States Munitions
List.” Id. The statute does not define “export,” but “defense items” includes
defense articles, defense services “and related technical data.” 22 U.S.C.
§ 2778(j)(4)(A).
       In response to this directive, the State Department promulgated the
International Traffic in Arms Regulations (“ITAR”), which contain the United
States Munitions List (“USML”). 22 C.F.R. § 121.1. The USML enumerates a
vast array of weaponry, ammunition, and military equipment including, for
present purposes, “firearms,” defined as “[n]onautomatic and semi-automatic
firearms to caliber .50 inclusive,” 22 C.F.R. § 121.1, Category I, item (a).
       The USML also broadly designates “technical data” relating to firearms
as subject to the ITAR. 22 C.F.R. § 121.1, Category I, item (i). “Technical data”
encompass any information “which is required for the design, development,
production, manufacture, assembly, operation, repair, testing, maintenance or
modification of defense articles including “information in the form of
blueprints, drawings, photographs, plans, instructions or documentation.”
22 C.F.R. § 120.10(a)(1).
        Notably excepted from “technical data” is information concerning
general scientific, mathematical, or engineering principles commonly taught
in schools, colleges, and universities, or information in the public domain.”
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                                       No. 15-50759
22 C.F.R. § 120.10(b). Further, the “public domain” covers “information which
is published and which is generally accessible or available to the public”
through newsstands, bookstores, public libraries, conferences, meetings,
seminars, trade shows, and “fundamental research in science and engineering
at accredited institutions of higher learning in the U.S. where the resulting
information is ordinarily published and shared broadly in the scientific
community.” 22 C.F.R. § 120.11(a). 6
       Under the ITAR it is unlawful to “export or attempt to export from the
United States any defense article or technical data” without first obtaining a
license or written approval from the Directorate of Defense Trade Controls
(“DDTC”), a division of the State Department. 22 C.F.R. § 127.1(a)(1). When
Defense Distributed published technical data on the Internet, the State
Department defined “export” broadly, as, inter alia, “[d]isclosing (including
oral or visual disclosure) or transferring technical data to a foreign person,
whether in the United States or abroad.” 22 C.F.R. § 120.17(a)(4). 7


       6  This provision only appears to permit dissemination of information already in the
public domain. Indeed, the State Department has explicitly taken the position in this
litigation and in a June 2015 Notice of Proposed Rulemaking that an individual wishing to
place technical data in the public domain must obtain State Department approval. 80 Fed.
Reg. at 31,528. The State Department has proposed, but has not yet adopted, a rule to make
this distinction more explicit. See id.

       7 Effective September 1, 2016, however, the State Department has amended that
provision, now defining an export as, “[r]eleasing or otherwise transferring technical data to
a foreign person in the United States.” Id. § 120.17(a)(2); see also International Traffic in
Arms: Revisions to Definition of Export and Related Definitions, 81 Fed. Reg. 35,611, 35,616
(June 3, 2016). Moreover, in June 2015, the State Department issued a Notice of Proposed
Rulemaking, which proposed adding to the term “export” “[m]aking technical data available
via a publicly available network (e.g., the Internet).” This, of course, is the open-ended
definition of “export” urged by the State Department in this litigation. See International
Traffic in Arms: Revisions to Definitions of Defense Services, Technical Data, and Public
Domain, 80 Fed. Reg. 31,525, 31,535 (proposed June 3, 2015). The Notice advised that the
State Department intends to address that definition in a separate rulemaking and for now
allows the “existing ITAR controls [to] remain in place.” 81 Fed. Reg. at 35,613.
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                                    No. 15-50759
          In order to resolve doubts about whether an “export” is covered by ITAR,
parties may request a “commodity jurisdiction” determination from the DDTC,
which will determine each request on a “case-by-case basis,” 22 C.F.R.
§ 120.4(a),     taking into account “the form and fit of the article; and [t]he
function and performance capability of the article.” 22 C.F.R. § 120.4 (d)(2)(i)–
(ii).
          The commodity jurisdiction process could, in theory, be avoided if the
particular export is exempt from the DDTC process. 22 C.F.R. § 125.4. As
relevant here, “[t]echnical data approved for public release (i.e., unlimited
distribution) by the cognizant U.S. Government department or agency or Office
of Freedom of Information and Security Review” is exempt from the DDTC
approval process. 22 C.F.R. § 125.4(b)(13). Under this rubric, the Defense
Office of Prepublication and Security Review (“DOPSR”), housed in the
Department of Defense’s Defense Technical Information Center, “is
responsible for managing the Department of Defense security review program,
[and] reviewing written materials both for public and controlled release.”
Defense Office of Prepublication and Security Review (DOPSR), EXECUTIVE
SERVS. DIRECTORATE ONLINE, http://www.dtic.mil/whs/esd/osr/ (last visited
Aug. 22, 2016). The plaintiff’s experience suggests that, in practice, DOPSR
will not act on requests for exemptions concerning items not clearly subject to
the ITAR until DDTC issues a commodity jurisdiction determination.
          The DDTC is required to provide a final commodity jurisdiction
determination within 45 days of a commodity jurisdiction request, but if it is
not then resolved, an applicant may request expedited processing. 22 C.F.R.
§ 120.4(e). The DDTC has been criticized by the Government Accountability
Office and the Office of Inspector General for routinely failing to meet
deadlines. In this case, it took nearly two years for DDTC to rule on the
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                                       No. 15-50759
plaintiff’s commodity jurisdiction applications. Although an applicant may
appeal an unfavorable commodity jurisdiction determination within the State
Department, Id. § 120.4(g), Congress has excluded from judicial review the
agency’s discretionary decisions in “designat[ing] . . . items as defense articles
or defense services.” 22 U.S.C. § 2778(h); 22 C.F.R. § 128.1. 8
       Should the DDTC determine, as here, that technical data are subject to
the ITAR, an “export” license is required before the information may be posted
online. But the license may be denied whenever the State Department “deems
such action to be in furtherance of world peace, the national security of the
United States, or is otherwise advisable.” 22 C.F.R. § 126.7(a)(1). There is a
nominal 60-day deadline for a licensing decision, which is riddled with
exceptions, and denial of an export license is expressly exempt from judicial
review. See 22 C.F.R. § 128.1.
       I would hardly deny that the Department of Justice has good grounds for
prosecuting attempts to export weapons and military technology illegally to
foreign actors.     Previous prosecutions have targeted defendants, e.g., who



       8   While 22 U.S.C. § 2778 (h) withholds judicial review as noted, 22 C.F.R. § 128.1
purports more broadly to preclude judicial review over the Executive’s implementation of the
AECA under the Administrative Procedure Act. I would construe these provisions narrowly
to avoid difficult questions that might arise were the Government to take the position that
these provisions prevent judicial review for all claims, including those founded on the
Constitution. See Kirby Corp v. Pena, 109 F.3d 258, 261 (5th Cir. 1997) (“There is a strong
presumption that Congress intends there to be judicial review of administrative agency
action . . . and the government bears a ‘heavy burden’ when arguing that Congress meant to
withdraw all judicial review.”); Dart v. United States, 848 F.2d 217, 221 (D.C. Cir. 1988) (“If
the wording of a preclusion clause is less than absolute, the presumption of judicial review
also favors a particular category of plaintiffs’ claims.”); Cuozzo Speed Techs., LLC v. Lee,
136 S. Ct. 2131, 2142 (2016) (Agency “shenanigans” are “properly reviewable . . . under the
Administrative Procedure Act, which enables reviewing courts to set aside agency action that
is contrary to constitutional right, in excess of statutory jurisdiction, or arbitrary [and]
capricious.”) (internal quotations omitted).

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                                  No. 15-50759
attempted to deliver WMD materials to North Korea, who sought to distribute
drone and missile schematics to China, and who attempted to license chemical
purchasing software to companies owned by the Iranian government. 9 Defense
Distributed agrees, moreover, that the Government may prosecute individuals
who email classified technical data to foreign individuals or directly assist
foreign actors with technical military advice. See, e.g., United States v. Edler
Industries, Inc., 579 F.2d 516 (9th Cir. 1978), construing prior version of
AECA. Yet, as plaintiff points out, at the time that DDTC stifled Defense
Distributed’s online posting, there were no publicly known enforcement actions
in which the State Department purported to require export licenses or prior
approval for the domestic posting of lawful, unclassified, not-otherwise-
restricted information on the Internet.
       While Defense Distributed has been mired in this thicket of regulation,
the CAD files that it published continue to be available to the international
public to this day on websites such as the Pirate Bay. Moreover, technology
has not stood still: design files are now available on the Internet for six- and
eight-shot handguns that can be produced with 3D printing largely out of
plastic materials.    See, e.g., Scott J. Grunewald, “The World’s First Fully
Printed Revolver is Here”, 3DPrintBoard.com (Nov. 23, 2015) (site visited
9/14/2016).
B.     Discussion
       As applied to Defense Distributed’s publication of technical data, the
State Department’s prepublication approval and license scheme lacks


       9 See DEPARTMENT OF JUSTICE, SUMMARY OF MAJOR U.S. EXPORT ENFORCEMENT,
ECONOMIC ESPIONAGE, TRADE SECRET AND EMBARGO-RELATED CRIMINAL CASES (January
2009 to the present: updated August 12, 2015) 3, 11, 86 (2015), available at
https://www.pmddtc.state.gov/compliance/ documents/OngoingExportCaseFactSheet.pdf.

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                                      No. 15-50759
statutory and regulatory authorization and invades the plaintiff’s First
Amendment rights because it is both a content-based regulation that fails
strict scrutiny and an unconstitutional prior restraint on protected speech. 10
       1. The Statute and its Regulatory Interpretation.
       Whether AECA itself, concerned with the “export” of defense article
related technical data, authorizes prepublication censorship of domestic
publications on the Internet is at least doubtful. Further, construing the State
Department’s regulations for such a purpose renders them incoherent and
unreasonable.
       It is necessary first to analyze the statute under which the State
Department presumed to enact its regulations and, under the first prong of
Chevron analysis, what the statute means. 11 The term “export” is not defined
in the AECA, is not a term of legal art, and is not ambiguous. Under standard
canons of statutory construction, “export” should bear its most common
meaning.      According to dictionaries, the verb “export” means “to ship
(commodities) to other countries or places for sale, exchange, etc.” United
States v. Ehsam, 163 F.3d 858, 859 (4th Cir. 1998) (citing The Random House
Dictionary of the English Language 682 (2d ed.1987)); Export, Black’s Law
Dictionary (10th ed. 2014) (“To send, take, or carry (a good or commodity) out
of the country; to transport (merchandise) from one country to another in the
course of trade”); United States v. Dien Duc Huynh, 246 F.3d 734, 741 (5th Cir.
2001) (“Exportation occurs when the goods are shipped to another country”).



       10For simplicity only, I do not here address plaintiffs’ vagueness claim.
       11It is hard to say whether the State Department’s interpretation of AECA should be
analyzed under Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842,
104 S. Ct. 2778, 2781 (1984) or United States v. Mead Corp., 533 U.S. 218, 227–28, 121 S. Ct.
2164, 2171–72 (2001). I refer to Chevron analysis arguendo because it captures both the
statute and the reasonableness of the regulations.
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                                 No. 15-50759
As the court explained in Ehsam, which interpreted a Presidential
proclamation banning “exportation” of goods or technology to Iran, “[t]hese
definitions vary in specificity, but all make clear that exportation involves the
transit of goods from one country to another for the purpose of trade.” Id. See
also Swan v. Finch Co. v. United States, 190 U.S. 143, 145 (1903) (the “legal
notion…of exportation is a severance of goods from the mass of things
belonging to this country with an intention of uniting them to things belonging
to some foreign country or another”). As against a claim that the rule of lenity
should apply, the Ehsam court explicitly held that “export” is unambiguous.
Id. at 859–60
      Given this construction of “export” by a fellow circuit court, we have no
reason to hold that Congress deviated from the term’s plain meaning,
particularly so significantly as to encompass the domestic publication on the
Internet, without charge and therefore without any “trade,” of lawful,
nonclassified, nonrestricted information.     “Congress . . . does not alter the
fundamental details of a regulatory scheme in vague terms or ancillary
provisions—it does not, one might say, hide elephants in mouseholes.” King v.
Burwell, 135 S. Ct. 2480, 2495 (2015) (internal quotation omitted). Pursuant
to Chevron, where the meaning of a statute is plain, a federal agency has no
warrant to act beyond the authority delegated by Congress. Chevron, U.S.A.,
Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43, 104 S. Ct. 2778, 2781
(1984).   The State Department’s briefing makes no effort to address the
statutory language, which must be read in light of established case law and
the term’s ordinary meaning and the rule of constitutional avoidance.
      This determination of the meaning of “export” under Chevron step one
would normally resolve the case. For the sake of argument, however, it is also
clear that the State Department regulations fail the second step as well. Under
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                                 No. 15-50759
the second step of Chevron analysis, they may be upheld only if they represent
a “reasonable” construction of the statute. Chevron, 467 U.S. at 844, 104 S. Ct.
at 2782. Defense Distributed and its amici challenge the regulations’
interpretation of “export” and the “public domain” exception to the definition
of “technical data.”     Although the majority opinion adopts the State
Department’s litigating position that “export” refers only to publication on the
Internet, where the information will inevitably be accessible to foreign actors,
the warning letter to Defense Distributed cited the exact, far broader
regulatory definition:   “export” means “disclosing (including oral or visual
disclosure) or transferring technical data to a foreign person, whether in the
United States of abroad.”     There is embedded ambiguity, and disturbing
breadth, in the State Department’s discretion to prevent the dissemination
(without an “export” license) of lawful, non-classified technical data to foreign
persons within the U.S. The regulation on its face, as applied to Defense
Distributed, goes far beyond the proper statutory definition of “export.”
      Even if “export” in AECA could bear a more capacious interpretation,
applying the State Department’s regulatory interpretation to the non-
transactional publication of Defense Distributed’s files on the Internet is
unreasonable. In terms of the regulations themselves, how this expansive
definition of “export” interacts with the “public domain” exception is unclear at
best. If any dissemination of information bearing on USML technical data to
foreign persons within the U.S. is potentially an “export,” then facilitating
domestic publication of such information free of charge can never satisfy the
“public domain” exception because newspapers, libraries, magazines,
conferences, etc. may all be accessed by foreign persons.            The State
Department’s ipse dixit that “export” is consistent with its own “public domain”
regulation is incoherent and unreasonable.      Even if these regulations are
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                                 No. 15-50759
consistent, however, attempting to exclude the Internet from the “public
domain,” whose definition does not currently refer to the Internet, is irrational
and absurd. The Internet has become the quintessential “public domain.” The
State Department cannot have it both ways, broadly defining “export” to cover
non-transactional publication within the U.S. while solely and arbitrarily
excluding from the “public domain” exception the Internet publication of
Defense Distributed’s technical data.
      The root of the problem is that the State Department’s litigating position
and its regulations put more weight on “export” than any reasonable
construction of the statute will bear.        “Export” and “publication” are
functionally different concepts. Cf. Bond, 134 S. Ct. at 2090 (“[s]aying that a
person ‘used a chemical weapon conveys a very different idea than saying the
person ‘used a chemical in a way that caused some harm.’ ” Not only does the
State Department fail to justify according its interpretation Chevron deference,
but the doctrine of constitutional avoidance establishes that Chevron deference
would be inappropriate anyway.        That doctrine provides that “where an
otherwise   acceptable construction      of a statute would raise        serious
constitutional problems, the Court will construe the statute to avoid such
problems unless such construction is plainly contrary to the intent of
Congress.” Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr.
Trades Council, 485 U.S. 568, 575 (1988); see also id. at 574–75 (stating that
although the agency interpretation at issue “would normally be entitled to
deference,” “[a]nother rule of statutory construction [constitutional avoidance].
. . is pertinent here”); see also Solid Waste Agency of N. Cook County v. United
States Army Corps of Eng’rs, 531 U.S. 159, 174 (2001) (“We thus read the
statute as written to avoid the significant constitutional and federalism
questions raised by respondents’ interpretation, and therefore reject the
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                                 No. 15-50759
request for administrative deference.”).          As the following constitutional
discussion shows, the Executive Branch has consistently recognized the
conceptual   difference    between     “export”     and    “publication”,   and   its
constitutional significance, throughout the forty-year history of the AECA. It
is only the novel threatened enforcement in this case that brings to the fore the
serious problems of censorship that courts are bound to address.
      2. The First Amendment—Content-based speech restriction.
      “Content-based      laws—those    that      target   speech   based    on   its
communicative content—are presumptively unconstitutional and may be
justified only if the government proves they are narrowly tailored to serve
compelling state interests.” Reed v. Town of Gilbert, 135 S. Ct. 2218, 2226
(2015). “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.” Id. at 2227. “A speech regulation targeted at specific subject
matter is content based even if it does not discriminate among viewpoints
within that subject matter:” consequently, even a viewpoint neutral law can
be content-based. Id. at 2230. “Strict scrutiny applies either when a law is
content based on its face or when the purpose and justification for the law are
content based.” Id. at 2228.
      The prepublication review scheme at issue here would require
government approval and/or licensing of any domestic publication on the
Internet of lawful, non-classified “technical information” related to “firearms”
solely because a foreign national might view the posting. As applied to the
publication of Defense Distributed’s files, this process is a content-based
restriction on the petitioners’ domestic speech “because of the topic discussed.”
Reed, 135 S. Ct. at 2227.      Particularly relevant to this case is Holder v.
Humanitarian Law Proj., 561 U.S. 1, 27–28, 130 S. Ct. 2705, 2723–24 (2010),
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                                     No. 15-50759
in which the Supreme Court held that as applied, a criminal statute forbidding
the provision of material support and resources to designated terrorist
organizations was content based and required strict scrutiny review. The Court
there rejected the government’s assertion that although the plaintiffs were
going to provide legal training and political advocacy to Mideast terrorist
organizations, the statute criminalized “conduct” and only incidentally affected
“speech.” Rejecting this incidental burden argument for intermediate scrutiny
review, the Court stated the obvious: “[p]laintiffs want to speak to the PKK
and the LTTE, and whether they may do so under §2239B depends on what
they say:” if their speech concerns “specialized knowledge” it is barred, but it
“if it imparts only general or unspecialized knowledge” it is permissible).
Humanitarian Law Proj., 130 S. Ct. at 2724.
      The State Department barely disputes that computer-related files and
other technical data are speech protected by the First Amendment.                     See
Universal City Studios, Inc. v. Corley, 273 F.3d 429, 445–49 (2d Cir. 2001)
(discussing level of scrutiny owed for “speech” in the form of a decryption
computer program).        There are CAD files on the Internet and designs,
drawings, and technical information about myriad items—jewelry, kitchen
supplies, model airplanes, or clothing, for example—that are of no interest to
the State Department. Only because Defense Distributed posted technical
data referring to firearms covered generically by the USML does the
government purport to require prepublication approval or licensing. This is
pure content-based regulation. 12


      12  The Ninth Circuit held in United States v. Mak that “the AECA and its
implementing regulations are content-neutral” because “[t]he purpose of the AECA does not
rest upon disagreement with the message conveyed,” and because “ITAR defines the technical
data based on its function and not its viewpoint.” 683 F.3d 1126, 1134–35 (9th Cir. 2012).
Mak is distinguishable for a number of reasons. First, the defendant was prosecuted for
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                                       No. 15-50759
       The Government’s argument that its regulatory scheme is content-
neutral because it is focused on curbing harmful secondary effects rather than
Defense Distributed’s primary speech is unpersuasive. The Supreme Court
explained this distinction in Boos v. Barry, which overturned an ordinance
restricting criticism of foreign governments near their embassies because it
“focus[es] on the direct impact of speech on its audience.” Secondary effects of
speech, as the Court understood, include “congestion, [] interference with
ingress or egress, [] visual clutter, or [] the need to protect the security of
embassies”, which are the kind of regulations that underlie Renton v. Playtime
Theaters. 485 U.S. 312, 321, 108 S. Ct. 1157, 1163–64 (1988). Similarly, the
regulation of speech here is focused on the “direct impact of speech on its
audience” because the government seeks to prevent certain listeners—foreign
nationals—from using the speech about firearms to create guns.
       The State Department also asserts that the ITAR regulatory scheme is
not content-based because the information here at issue is “functional,” that is,
that downloading the Defense Distributed files directly enables the creation of
3D printed gun and gun components “at the push of a button.” This argument
is flawed factually and legally.          First, more than CAD (or CNC) files are
involved in the information sought to be regulated by the State Department:



attempting to export to the People’s Republic of China sensitive submarine technology loaded
on unauthorized CDs and was arrested when he was carrying them aboard an international
flight. Second, Mak was decided before Reed where the Supreme Court counseled that
“[s]ome facial distinctions based on a message are obvious, defining regulated speech by
particular subject matter, and others are more subtle, defining regulated speech by its
function or purpose. Both are distinctions drawn based on the message a speaker conveys,
and, therefore, are subject to strict scrutiny.” 135 S. Ct. at 2230. Third, even if the case is
analyzed as a content-based restriction, Mak’s prosecution falls comfortably within the
traditional understanding of “export.” The government’s heightened interest in national
security is evident, and the Court required the government to prove beyond a reasonable
doubt that the technical information he was carrying was not in the public domain.
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                                   No. 15-50759
its warning letter to Defense Distributed identified both “files” and “technical
data,” which include design drawings, rendered images, and written
manufacturing instructions. Second, CAD files do not “direct a computer” to
do anything. As the amicus Electronic Frontier Foundation explains, “[T]o
create a physical object based on a CAD file, a third party must supply
additional software to read these files and translate them into the motions of
a 3D print head, the 3D printer itself, and the necessary physical materials.”
The person must provide know-how, tools and materials to assemble the
printed components, e.g. treating some parts of the Liberator with acetone to
render them functional. In effect, the “functionality” of CAD files differs only
in degree from that of blueprints. Legally, this argument is an attempt to fit
within the Corley case, referenced above, which concerned a computer program
that by itself provided a “key” to open otherwise copyright-restricted online
materials; those facts are far afield from the technical data speech at issue
here. Corley, 273 F.3d at 449–55.
      Because the regulation of Defense Distributed’s speech is content-based,
it is necessary to apply strict scrutiny. The district court erred in applying the
lower intermediate scrutiny standard.            I would not dispute that the
government has a compelling interest in enforcing the AECA to regulate the
export of arms and technical data governed by the USML. The critical issue is
instead whether the government’s prepublication approval scheme is narrowly
tailored to achieve that end. A regulation is not narrowly tailored if it is
“significantly overinclusive.” Simon & Schuster, Inc. v. Members of N.Y. State
Crime Victims Bd., 502 U.S. 105, 121, 112 S. Ct. 501, 511 (1991).
      “[S]ignificantly     overinclusive,”   however,    aptly    describes    the
Government’s breathtaking assertion of prepublication review and licensing
authority as applied in this case. To prevent foreign nationals from accessing
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                                 No. 15-50759
technical data relating to USML-covered firearms, the government seeks to
require all domestic posting on the Internet of “technical data” to be pre-
approved or licensed by the DDTC. No matter that citizens have no intention
of assisting foreign enemies directly, communications about firearms on
webpages or blogs must be subject to prior approval on the theory that a foreign
national might come across the speech. This flies in the face of Humanitarian
Law Project. Although a statute prohibiting the provision of “material support
and resources” to designated terrorist groups did not violate First Amendment
rights where plaintiffs intended to directly assist specific terrorist
organizations, the Court “in no way suggest[ed] that a regulation of
independent speech would pass constitutional muster, even if the Government
were to show that such speech benefits foreign terrorist organizations…[or]
that Congress could extend the same prohibition on material support at issue
here to domestic organizations.” 561 U.S. at 36–39, 130 S. Ct. at 2729–30. The
State Department’s ITAR regulations, as sought to be applied here, plainly
sweep in and would control a vast amount of perfectly lawful speech.
      Two exceptions to the regulations do not eliminate the problem of
overinclusiveness.    First, general scientific, mechanical, or engineering
principles taught in schools is deemed exempt from ITAR as information in the
public domain. This exception does not, however, appear to save from potential
regulation and licensing the amateur gunsmith or hobby shooter who discusses
technical information about the construction of firearms on an Internet
webpage. Any information so shared is not necessarily “general scientific,
mechanical, or engineering principles taught in schools.” Underscoring this
problem, at oral argument the government would not definitively answer
whether the State Department would purport to regulate the posting of such


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                                    No. 15-50759
unclassified technical data that appeared in library books or magazines like
Popular Mechanics.
      Second, the State Department has taken the position in this litigation
that the “public domain” exception applies only to information already in the
public domain.     Its interpretation of the technical data regulations would
permit the DDTC to stifle online discussion of any innovations related to
USML-covered firearms because new information would, by definition, not be
in the public domain already. Amicus Reporters Committee for Freedom of the
Press and the Thomas Jefferson Center for the Protection of Free Expression
correctly expresses fear about journalists’ ability to report, without DDTC
approval, on the latest technological innovations related to any items covered
by the USML.
      Lest this concern of overinclusiveness be perceived as hyperbole,
consider that in 2013, CNET published an article containing an unredacted
copy of a document detailing performance requirements for unmanned U.S.
military surveillance drones. 13 Should CNET have applied for approval or a
license from the DDTC prior to publication?                The State Department’s
interpretation of the regulations could lead to that conclusion. See 22 C.F.R.
§ 121.1, Category VIII, item (i) (technical data related to aircraft and related
articles).   The USML-related technical discussed there (1) were “exported”
because of their availability to foreign persons by publication on the Internet,
and (2) the “public domain” exception would be of no avail since the
information had not been in the public domain (narrowly defined to exclude




      13 See Declan McCullagh, DHS Built Domestic Surveillance Tech into Predator Drones,
CNET (Mar. 2, 2013, 11:30 AM), http://www.cnet.com/news/dhs-built-domestic-surveillance-
tech-into-predator-drones/.
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                                  No. 15-50759
the Internet) before publication in the CNET article. On the Government’s
theory, journalists could be subject to the ITAR for posting articles online.
      The State Department also asserts that, somehow, the information
published by Defense Distributed would have survived regulatory scrutiny
(query before or after submission to DDTC?) if the company had “verified the
citizenship of those interested in the files, or by any other means adequate to
ensure that the files are not disseminated to foreign nationals.” Government
brief at 20. Whatever this means, it is a ludicrous attempt to narrow the ambit
of its regulation of Internet publications. Everyone knows that personally
identifying information can be fabricated on electronic media.            Equally
troubling, if the State Department truly means what it says in brief about
screening out foreign nationals, then the “public domain” exception becomes
useless when applied to media like print publications and TV or to gatherings
open to the public.
      In sum, it is not at all clear that the State Department has any concern
for the First Amendment rights of the American public and press. Indeed, the
State Department turns freedom of speech on its head by asserting, “The
possibility that an Internet site could also be used to distribute the technical
data domestically does not alter the analysis….” The Government bears the
burden to show that its regulation is narrowly tailored to suit a compelling
interest. It is not the public’s burden to prove their right to discuss lawful,
non-classified, non-restricted technical data.         As applied to Defense
Distributed’s online publication, these overinclusive regulations cannot be
narrowly tailored and fail strict scrutiny.
      3. The First Amendment--Prior Restraint.
      The Government’s prepublication approval and licensing scheme also
fails to pass constitutional muster because it effects a prior restraint on speech.
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                                     No. 15-50759
The classic description of a prior restraint is an “administrative [or] judicial
order[] forbidding certain communications when issued in advance of the time
that such communications are to occur.” Catholic Leadership Coalition of Tex.
v. Reisman, 764 F.3d 409, 437 (5th Cir. 2014) (citing Alexander v. United
States, 509 U.S. 544, 550, 113 S. Ct. 2766, 2771 (1993)).                     The State
Department’s prepublication review scheme easily fits the mold.
       Though not unconstitutional per se, any system of prior restraint bears
a heavy presumption of unconstitutionality. FW/PBS, Inc. v. City of Dallas,
493 U.S. 215, 225, 110 S. Ct. 596, 604 (1990). Generally, speech licensing
schemes must avoid two pitfalls.            First the licensors must not exercise
excessive discretion. Catholic Leadership Coalition, 764 F.3d at 437 (citing
Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 757, 108 S. Ct. 2138, 2144
(1988)). “[N]arrowly drawn, reasonable and definite standards” should guide
the licensor in order to avoid “unbridled discretion” that might permit the
official to “encourag[e] some views and discourag[e] others through the
arbitrary application” of the regulation.           Forsyth Cty., Ga. v. Nationalist
Movement, 505 U.S. 123, 133, 112 S. Ct. 2395, 2402–03 (1992).
       Second, content-based 14 prior restraints must contain adequate
procedural protections. The Supreme Court has requires three procedural
safeguards against suppression of protected speech by a censorship board:
(1) any restraint before judicial review occurs can be imposed for only a
specified brief period of time during which the status quo is maintained;
(2) prompt judicial review of a decision must be available; and (3) the censor
must bear the burdens of going to court and providing the basis to suppress


       14 As described above, the ITAR regulation of posting to the Internet technical data
related to USML-covered firearms is content-based. Thus, it is subject to the procedural
requirements set forth in Freedman v. Maryland.
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                                     No. 15-50759
the speech. N.W. Enters. v. City of Houston, 352 F.3d 162, 193–94 (5th Cir.
2003) (citing Friedman v. Maryland, 380 U.S. 51, 58–59, 85 S. Ct. 734, 739
(1965)). In sum, a court reviewing a system of prior restraint should examine
“both the law’s procedural guarantees and the discretion given to law
enforcement officials.” G.K. Ltd. Travel v. City of Lake Oswego, 436 F.3d 1064,
1082 (9th Cir. 2006); see also East Brooks Books, Inc. v. Shelby Cty.,
588 F.3d 360, 369 (6th Cir. 2009); Weinberg v. City of Chi., 310 F.3d 1029, 1045
(7th Cir. 2002).
      To the extent it          embraces     publication of non-classified, non-
transactional, lawful technical data on the Internet, the Government’s scheme
vests broad, unbridled discretion to make licensing decisions and lacks the
requisite procedural protections.         First, as explained above, the “export”
regulations’ virtually unbounded coverage of USML-related technical data
posted to the Internet, combined with the State Department’s deliberate
ambiguity in what constitutes the “public domain,” renders application of ITAR
regulations anything but “narrow, objective, and definite.”                 The stated
standards do not guide the licensors to prevent unconstitutional prior
restraints. Shuttlesworth v. City of Birmingham, 394 U.S. 147, 151, 89 S. Ct.
935, 938 (1969). The State Department’s brief actually touts the case-by-case
nature of the determination whether to prevent Internet publication of
technical data. 15
      In City of Lakewood v. Plain Dealer Publishing Co., for example, the
Supreme Court held that a city ordinance insufficiently tailored the Mayor’s



      15  Compounding confusion, the ITAR grant broad discretion to DDTC to deny an
export license if it “deems such action to be in furtherance of world peace, the national
security or the foreign policy of the United States, or is otherwise advisable.” 22 C.F.R.
§ 126.7(a)(1) (emphasis added).
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                                  No. 15-50759
discretion to issue newspaper rack permits because “the ordinance itself
contains no explicit limits on the mayor’s discretion” and “nothing in the law
as written requires the mayor to do more than make the statement ‘it is not in
the public interest’ when denying a permit application.” 486 U.S. at 769,
108 S. Ct. at 2150–51. Like the “illusory ‘constraints’’’ in Lakewood, id. at 769,
the ITAR prepublication review scheme offers nothing but regulatory (or
prosecutorial) discretion, as applied to the technical data at issue here, in lieu
of objective standards. Reliance on the censor’s good faith alone, however, “is
the very presumption that the doctrine forbidding unbridled discretion
disallows.”   Id. at 770. Cf. Humanitarian Law Project, 130 S. Ct. at 2728
(listing numerous ways in which Congress had exhibited sensitivity to First
Amendment concerns by limiting and clarifying a statute’s application and
“avoid[ing] any restriction on independent advocacy, or indeed any activities
not directed to, coordinated with, or controlled by foreign terrorist groups”).
      Just as troubling is the stark lack of the three required procedural
protections in prior restraint cases.        Where a commodity jurisdiction
application is necessary, the alleged 45-day regulatory deadline for such
determinations seems to be disregarded in practice; nearly two years elapsed
between Defense Distributed’s initial request and a response from the DDTC.
Further, the prescribed time limit on licensing decisions, 60 days, is not
particularly brief. See Teitel Film Corp. v. Cusak, 390 U.S. 139, 141, 88 S. Ct.
754, 756 (1968).
      More fundamentally, Congress has withheld judicial review of the State
Department’s designation of items as defense articles or services.         See 22
U.S.C. § 2778(h); 22 C.F.R. § 128.1 (precluding judicial view of the Executive’s
implementation of the AECA under the APA). The withholding of judicial
review alone should be fatal to the constitutionality of this prior restraint
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                                    No. 15-50759
scheme insofar as it involves the publication of unclassified, lawful technical
data to the Internet. See City of Littleton, Colo. v. Z.J. Gifts D-4, LLC, 541 U.S.
774, 781, 124 S. Ct. 2219, 2224 (2004) (noting that the Court’s decision in
FW/PBS, Inc. v. City of Dallas, interpreting Freedman’s “judicial review”
safeguard, requires “a prompt judicial decision,” as well as prompt access to
the courts). And where judicial review is thwarted, it can hardly be said that
DDTC, as the would-be censor, can bear its burden to go to court and support
its actions.
C.       The Government’s Interest, Balancing the Interests
         A brief discussion is necessary on the balancing of interests as it should
have been done in light of the facts of this case.     No one doubts the federal
government’s paramount duty to protect the security of our nation or the
Executive Branch’s expertise in matters of foreign relations.              Yet the
Executive’s mere incantation of “national security” and “foreign affairs”
interests do not suffice to override constitutional rights. The Supreme Court
has long declined to permit the unsupported invocation of “national security”
to cloud the First Amendment implications of prior restraints. See New York
Times Co. v. United States, 403 U.S. 713, 714, 91 S. Ct. 2140, 2141 (1971)
(reversing the grant of an injunction precluding the New York Times and the
Washington Post from publishing the Pentagon Papers, a classified study of
United States involvement in Vietnam from 1945–1967); id. at 730 (Stewart,
J., concurring) (noting that because he cannot say that disclosure of the
Pentagon Papers “will surely result in direct, immediate, and irreparable
damage to our Nation or its people,” publication may not be enjoined consonant
with the First Amendment). Indeed, only the most exceptional and immediate
of national security concerns allow a prior restraint on speech to remain in
place:
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                                       No. 15-50759
    the protection as to previous restraint is not absolutely unlimited. But
    the limitation has been recognized only in exceptional cases . . . .[n]o
    one would question but that a government might prevent actual
    obstruction to its recruiting service or the publication of sailing dates of
    transports or the number and location of troops. On similar grounds,
    the primary requirements of decency may be enforced against obscene
    publications. The security of the community life may be protected
    against incitements to acts of violence and the overthrow by force of
    orderly government.


Near v. Minnesota ex rel. Olson, 283 U.S. 697, 716, 51 S. Ct. 625, 631 (1931);
cf. Haig v. Agee, 453 U.S. 280, 306–08, 101 S. Ct. 2766, 2781–82 (1981) (holding
that the Secretary of State’s revocation of Haig’s passport did not violate First
Amendment rights because his actions exposing undercover CIA agents abroad
threatened national security). No such exceptional circumstances have been
presented in this case. Indeed, all that the majority can muster to support the
government’s position here is that
       the State Department’s stated interest in preventing foreign
       nationals—including manner of enemies of this country—from
       obtaining technical data on how to produce weapons and weapon
       parts is not merely tangentially related to national defense and
       national security; it lies squarely within that interest.


Neither the district court nor the State Department offers anything else. 16
With that kind of reasoning, the State Department could wholly eliminate the
“public domain” and “scholarly” exceptions to the ITAR and require pre-
publication approval of all USML-related technical data. This is clearly not




       16The State Department notes the fear that a single-shot pistol undetectable by metal-
sensitive devices could be used by terrorists. The Liberator, however, requires a metal firing
pin.
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                                       No. 15-50759
what the Supreme Court held in the Pentagon Papers or Near cases. See
generally L.A. Powe, Jr., The H-Bomb Injunction, 61 U.Colo.L.Rev. 55 (1990).
       Without any evidence to the contrary, the court should have held that
the domestic Internet publication of CAD files and other technical data for a
3D printer-enabled making of gun parts and the Liberator pistol presents no
immediate danger to national security, especially in light of the fact that many
of these files are now widely available over the Internet and that the world is
awash with small arms. 17
       Further, the government’s pro-censorship position in this case
contradicts the express position held within the Executive Branch for the
nearly forty-year existence of the AECA. The State Department’s sudden
turnabout severely undercuts its argument that prepublication review and
licensing for the publication of unclassified technical data is justified by
pressing national security concerns. Indeed, in the late 1970s and early 1980s,
at the height of the Cold War, the Department of Justice’s Office of Legal
Counsel repeatedly offered written advice that a prepublication review process
would raise significant constitutional questions and would likely constitute an
impermissible prior restraint, particularly when applied to unclassified
technical data disseminated by individuals who do not possess specific intent
to deliver it to particular foreign nationals. Further, in a 1997 “Report on the
Availability of Bombmaking Information,” the Department of Justice observed
the widespread availability of bombmaking instructions on the Internet, in



       17 The Government also vaguely asserts that imposing a prior restraint upon the
domestic publication of the technical data here is justified to protect foreign relations with
other countries that have more restrictive firearms laws than the United States. Inflicting
domestic speech censorship in pursuit of globalist foreign relations concerns (absent specific
findings and prohibitions as in Humanitarian Law Project) is dangerous and unprecedented.

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                                No. 15-50759
libraries, and in magazines. The Department of Justice then argued against
government censorship, concluding that despite the distinct possibility that
third parties can use bombmaking instructions to engage in illegal conduct, a
statute “proscrib[ing] indiscriminately the dissemination of bombmaking
information” would face First Amendment problems because the government
may rarely prevent the dissemination of truthful information. 18
      With respect to the ITAR’s regulation of “technical data,” DDTC’s
director has taken the position in litigation that the State Department “does
not seek to regulate the means themselves by which information is placed in
the public domain” and “does not review in advance scientific information to
determine whether it may be offered for sale at newsstands and bookstores,
through subscriptions, second-class mail, or made available at libraries open
to the public, or distributed at a conference or seminar in the United States.”
Second Declaration of William J. Lowell Department of State Office of Defense
Trade Controls at 11, Bernstein v. U.S. Dep’t of State, 945 F. Supp. 1279 (N.D.
Cal. 1996). Moreover, he added, “the regulations are not applied to establish a
prepublication review requirement for the general publication of scientific
information in the United States.” Id.
      Finally, the State Department’s invocation of unspecified national
security concerns flatly contradicts its contention that while Defense
Distributed’s very same technical data cannot be published on the Internet,
they may be freely circulated within the U.S. at conferences, meetings, trade
shows, in domestic print publications and in libraries. (Of course, as above
noted, the Government’s sincerity on this point is subject to doubt, based on



      18DEPARTMENT OF JUSTICE, 1997 REPORT ON THE AVAILABILITY OF BOMBMAKING
INFORMATION 3, 5–7, 19–29 (1997).
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                                  No. 15-50759
the determined ambiguity of its litigating position.) After all, if a foreign
national were to attend a meeting or trade show, or visit the library and read
a book with such information in it, under the Government’s theory, the
technical data would have been “exported” just like the Internet posts, because
it was “[d]isclos[ed] (including oral or visual disclosure). . . to a foreign person
. . . in the United States or abroad.” Id. § 120.17(a)(4).
                                        ***
      By refusing to address the plaintiffs’ likelihood of success on the merits
and relying solely on the Government’s vague invocation of national security
interests, the majority leave in place a preliminary injunction that degrades
First Amendment protections and implicitly sanctions the State Department’s
tenuous and aggressive invasion of citizens’ rights.         The majority’s non-
decision here encourages case-by-case adjudication of prepublication review
“requests” by the State Department that will chill the free exchange of ideas
about whatever USML-related technical data the government chooses to call
“novel,” “functional,” or “not within the public domain.” It will foster further
standardless exercises of discretion by DDTC censors.
      Today’s target is unclassified, lawful technical data about guns, which
will impair discussion about a large swath of unclassified information about
firearms and inhibit amateur gunsmiths as well as journalists. Tomorrow’s
targets may be drones, cybersecurity, or robotic devices, technical data for all
of which may be implicated on the USML.                 This abdication of our
decisionmaking responsibility toward the First Freedom is highly regrettable.
I earnestly hope that the district court, on remand, will take the foregoing
discussion to heart and relieve Defense Distributed of this censorship.




                                        42
