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Saturday, August 4, 2018

Free Speech and Prior Restraint

You've probably heard by now that the Federal Government settled a lawsuit with Defense Distributed to the tune of $40K in legal fees and admitted that publishing online instructions for how to 3-D print a firearm (the Liberator pistol) isn't subject to ITAR regulations and is, in fact, protected free speech.

This is an echo of the old PGP criminal investigation where Phil Zimmermann, the inventor of the Pretty Good Privacy encryption algorithm, was the subject of a criminal investigation for the "export of munitions without a license". Charges against Zimmerman were dropped when he published the entire source code of PGP in a book, thereby making the argument that encryption wasn't a munition but rather speech and therefore protected under the First Amendment.

There are of course some loony politicians and celebrities who are having the expected vapors, conniptions and hissy fits over this (I understand the hashtag #DownloadableDeath is quite popular, and I must confess it's rather catchy) because they don't understand how 3-D printing works and they don't understand how guns work. I'd go into detail about how they're stupid, but odds are you've already read about this on other fine gun blogs or heard about it on podcasts and I don't need to re-invent their wheels.

Also rather predictably, many state's attorneys (20, last time I checked) are suing to block the release of these files on the internet by shutting down DefCAD.com in a virtue signal that completely misses the fact that these files are already on the internet and there's no way to get them off because they've been uploaded to dozens of sites. Social media is also doing its best to embrace censorship by deleting links to the most prominent non-DefCAD hosting site for these files.

I'm not here to talk about that. Rather, I'm here to talk about how I, a damn-near Free Speech Absolutist, can reconcile my desire for unlimited speech with a similar desire not to see "harmful forms of expression" flourish.

In the meantime, here is a picture I made. It is art, and therefore protected expression.

Title: Routing Around Damage  (2018)
Artist: Erin Palette
Medium: Ones and Zeroes

So when, in my worldview, is expression not protected? The simplest way of putting it is "When that expression violates the rights of, or causes harm to, others." For example:
  1. Defamatory Speech such as slander and libel is not protected, because defamation is legally defined as a false statement of fact and defamatory speech causes harm to reputation which then affects income. In other words, falsehoods which harm others aren't protected speech. 
    • Truths which harm others are protected speech, which is why truth is an absolute defense to an accusation of defamation.
    • Falsehoods which don't harm others are protected speech, because if it doesn't harm anyone, who cares?
  2. Theft of Intellectual Property. Artists deserve to be paid for their work, and passing off their work as your own is theft. 
  3. Fraud. Another form of theft, this time of money or material goods. 
  4. Invasions of Privacy. You have a Fourth Amendment Right to Privacy, and so anyone who invades your privacy without your consent or a warrant violates your rights. Therefore, anyone who takes pictures of you in a state of undress without your consent is not engaging in free speech, nor is someone who distributes them without your consent.
  5. Incitement to Commit Crimes. This one is tricky in that it actually depends on whether or not people actually follow your instructions and commit a crime. If they didn't, you're fine; if they did, you're now an accessory to their crimes in the same way that someone who drives the getaway car is an accessory to the crime that the other criminals are trying to get away from. 
  6. Breaking a Non-Disclosure Agreement. Oh hey, you signed a legal contract saying you wouldn't do a thing and that you'd be penalized if you did. This isn't a free speech issue, this is breach of contract. 
  7. Treason. This is actually a highly specialized form of breach of contract 99% of the time. In order for speech to provide aid and comfort to the enemy, the speaker is usually giving away state secrets and that's not the kind of thing that the average citizen can do. Instead, it's usually politicians or members of the military or intelligence agencies which have that kind of access, and they have sworn oaths -- which are contracts -- that they will faithfully serve and defend the country and/or the Constitution. Furthermore, anyone with security clearance is going to have sworn more oaths and signed more contracts before receiving that clearance.
    • That other 1% is a very rare, very specific "Tokyo Rose" situation whereby an American citizen aids in the propaganda against the USA. This is the only situation I can think of where the speech of someone without a security clearance can in any way be treasonous.

This brings us rather handily to a concept known as prior restraint. I am not a lawyer and I don't pretend to be, so a generalized definition of prior restraint is "the government forbids certain types of speech before it's uttered."  A good example of this are the FCC decency standards that prohibit certain types of profanity, nudity and violence on network television -- and even then, standards are relaxed further on cable channels.

Essentially, prior restraint goes "We think you might say or depict something we don't like, so we're going to pre-emptively forbid you from doing it on pain of punitive fines or worse." It's rather like saying "You might falsely shout 'fire!' in a crowded theater, so before you go inside, we're going to gag you."

I don't like prior restraint for the same reason I don't like gun control laws: they're all based on trying to stop something which most people won't do anyway, and which won't stop those people intent on doing evil to others. For example, those people whinging about "undetectable firearms in the hands of criminals" don't seem to grasp the fact that criminals can already get their hands on fireams via theft or the black market, and those firearms won't be one-shot plastic pistols that fail after a few uses.

So let's look at my examples and see how they interact with prior restraint.
  1. Defamatory Speech. The police won't come after you if you defame someone; rather, the defamed must sue them in court. No prior restraint here.
  2. Theft of Intellectual Property. Again, police will not come after those who violate copyright; that's another civil suit. 
  3. Fraud. I can make all the fraudulent statements I want so long as I don't promise something I don't give in return. (See: satire, parody, performance art.) If I do deprive you of money without a fair exchange, that's theft and not a speech issue. 
  4. Invasions of Privacy. This isn't a speech issue, this is a 4th Amendment issue. That's why nude pictures of you taken and published with your consent are fine.
  5. Incitement to Commit Crimes. Well, did anyone do what you told them to do? After all, I can think of many situations where public figures riled up their listeners and yet nothing happened. This tells me that we aren't punishing the speech, but rather the actions afterwards.
  6. Breaking a Non-Disclosure Agreement. This is prior restraint, but you entered into it voluntarily. Don't want to be restrained? Don't sign it. 
  7. Treason. Also prior restraint, but again, also contractually based 99% of the time.

For me, what it comes down to is this: Speech is not inherently good or bad, it simply is. To consider information to be a priori dangerous and therefore restricted or banned is the absolute antithesis of liberty. While I can see some exceptions being made on the level of national security -- and indeed, that's where most cases of prior restraint apply and they are most definitely not a priori cases -- publishing instructions on how to make and assemble a mostly-plastic gun does not fall into that category.

Prior restraint is largely regarded as unconstitutional, and for good reason. Let's keep it that way.

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