California Attorney General Xavier Becerra last week joined a lawsuit seeking to prohibit a Texas company from publishing plans for 3D-printed guns online. While we share his goal of keeping guns out of the wrong hands, squelching free speech rights should be the last resort.
The company, Defense Distributed, posted the plans for a plastic, 3D-printed gun in 2013. The federal government ordered the plans taken down under an international arms export regulation. The company complied, then sued, and the Trump administration settled earlier this year. The attorneys general filed their own lawsuit and secured a temporary injunction barring posting online.
The argument against plastic 3D-printed guns is easy to make. They provide a way for people who aren’t allowed to have a gun — felons, domestic abusers, juveniles, etc. — to acquire one. That gun theoretically could pass through a metal detector and needn’t have a serial number. Those are problems, but they aren’t the fault of the plans. There is a difference between speech — posting technical plans — and execution — 3D-printing a gun.
This distinction is hardly a novel understanding of the First Amendment’s free speech guarantee. In a 1927 decision involving a challenge to a California law, the U.S. Supreme Court wrote, “The fact that speech is likely to result in some violence or in destruction of property is not enough to justify its suppression. … Among free men, the deterrents ordinarily to be applied to prevent crime are education and punishment for violations of the law, not abridgment of the rights of free speech and assembly.”
The nation’s top court has reaffirmed that notion repeatedly.
Just as the Second Amendment doesn’t bar background checks and other reasonable safety measures, some restrictions on free speech are permissible.
But the risk that the 3D-printing case could open the door to broader censorship brought out an unusual coalition. Free speech advocates, including the Reporters Committee for Freedom of the Press, the Thomas Jefferson Center for the Protection of Free Expression and the Electronic Frontier Foundation, as well as libertarian-minded Cato Institute and the Texas Public Policy Foundation filed briefs supporting Defense Distributed.
Plenty of speech that could be used dangerously remains legal. Search online for instructions to make weapons or drugs and you might be shocked what’s available. Yet even if those instructions are allowed, making bombs or drugs is not. As the court advised all those years ago, government can punish violations without punishing speech.
So rather than seeking to suppress speech, states and the federal government should regulate the production of 3D-printed guns. In fact, California already does. A 3D-printed gun must include a piece of metal and, as with any other homemade firearm, a state-issued serial number. Existing federal law bars firearms that can’t be detected by metal detectors.
The 3D-printed guns themselves are notoriously unreliable, often shattering the second time they’re fired. So it’s seems more likely that determined felons will do what they do now: try to buy guns on the street.
There is too much gun violence in this country — and too many guns in the hands of people who aren’t supposed to possess them. But government restrictions on free speech aren’t the answer. There are more effective tools available to mitigate the risks posed by 3D-printed guns, including universal background checks and strict enforcement of laws against untraceable firearms.