“This isn’t like shipping wine”—Defense Distributed v. Grewal has its day in court

AUSTIN, Texas—“I see nuances that require more thought,” US District Judge Robert Pitman told the assembled attorneys and small crowd of onlookers (new Defense Distributed Director Paloma Heindorff included). “All presentations have been of great use, and these are fascinating and important issues.”

Pitman, clearly, would not be making any rulings in Defense Distributed v. Grewal (PDF), a suit brought last summer by the 3D printed firearms company (and colleagues like the Second Amendment Foundation) against New Jersey State Attorney General Gurbir Grewal. But just as clearly, the judge appeared to recognize the fundamental and futuristic questions at play as the idea of free speech collides with the idea of digitally distributing CAD files for printing a firearm.

This case largely hinges on a newly enacted state law, SB2465, aimed at regulating “ghost guns.” Texas-based Defense Distributed believes it violates the Constitution. The company has failed twice to argue for a temporary restraining order against New Jersey. Now Judge Pitman gathered the two legal teams to consider a preliminary injunction, a wider-reaching legal maneuver that could potentially halt an array of actions.

Wait, should we even be here?

Pitman seems to have two distinct matters to consider. To start, he posed one directly to Defense Distributed attorney Chad Flores.

“I need you to satisfy that I have jurisdiction to hear this matter,” the judge said. "Given the statute has only been enacted at the state-level in New Jersey, why should this be considered in a Texas federal court?"

Flores admitted precedent seems split: in Stroman Realty v. Wercinski (PDF), courts found a home state of an Internet-based business lacked personal jurisdiction over a regulator from another state (a Texas timeshare company felt its rights were violated and had sued the Arizona Department of Real Estate).

But in Calder v. Jones, the Supreme Court did allow a court within a state to have personal jurisdiction over a national entity (the National Enquirer, based in Florida then, was sued for defamation in California after copies were distributed in-state). Flores argued that this falls into the latter category, given it does “change what people can say here in Texas.”

“If Defense Distributed can be sued in Washington because they have sufficient contact, how can you reconcile that with the position taken here?” Flores said. “We just put up a website; New Jersey aimed their actions at Texas.”

Arguing for New Jersey, attorney Casey Low added a third citation: Walden v. Fiore. Here, a DEA agent at the Atlanta airport seized $97,000 from a Nevada resident’s luggage, and the resident (a professional gambler) tried taking legal action, arguing the seizure violated Fourth Amendment rights.

Ultimately, the Supreme Court found Nevada lacked personal jurisdiction because, as Oyez.org summarizes, “a non-resident defendant [must] have a substantial connection with the state in which he is sued. This connection must arise from the contacts that the defendant himself creates.”

Low argued that the New Jersey statute does not create a substantial connection with Texas. “It’s at best like sending a cease-and-desist to tell them, ‘If you commit a crime, you’ll be under jurisdiction here.’ ... Just because the plaintiffs want to subject themselves to jurisdiction everywhere doesn’t mean New Jersey faces jurisdiction in Texas.”

Location aside, let’s talk constitutionality…

Jurisdiction alone could make this moot for Defense Distributed. But if Judge Pitman found the argument for Texas jurisdiction compelling, he then has another matter to consider: the validity of the preliminary injunction motion.

Here, Defense Distributed seems to be making two main arguments—first, its legal team believes the statute has had a genuine effect, causing imminent harm (the threat of possible criminal action against Defense Distributed) and a chilling effect (that speech, in this case firearm CAD files or the act of advertising those, is inhibited by the threat of legal sanctions).

Defense Distributed also believes the statute is unconstitutional. It argues that it violates the First Amendment, due process, the Commerce Clause (which allows Congress, not states, to regulate commerce with foreign nations), and the Supremacy Clause (which gives federal law precedent over state law).

Regarding due process, Defense Distributed attorney Josh Blackman insisted the statute is currently too broad, “a nuisance statute is as tailored as a burlap sack,” he said. Things as simple as a nut or bolt might be considered a firearm component, Blackman argued, and those obviously have many legal uses. For a law to pass due process muster, he said, individuals must know what specifically is being regulated.

On the commerce front, Blackman noted, everything started with a Texas server—not with a physical object being considered in New Jersey.

“By merely putting a file on the Internet, we’re coming to New Jersey,” he said. “But this isn’t like shipping wine. One state cannot regulate [the] Internet; this is a very big deal.”

And regarding the Supremacy Clause, he positioned firearms CAD files as a type of content that Defense Distributed hosts, like videos on YouTube. In that light, they would fall under the Digital Millennium Copyright Act, where Internet liability has been a federal (not state) concern.

Low and New Jersey disagree that the statute limits speech. “[Defense Distributed] wants to ship code so people can print it; they want no limit,” he said. “We don’t want guns in the hands of terrorists, criminals, or someone who wants to head to a school with an AR-15 without them going to a gun store and having a background check.”

He said New Jersey’s position, “code with intent to print 3D print guns,” is what the state wants to specifically target.

“Handing a gun to a terrorist and saying, ‘I really love guns,’ doesn’t make it speech,” Low said. “That’s still distribution.”

Regarding the Commerce and Supremacy Clauses, Low said SB2465 doesn’t prohibit shipping gun files via the Internet everywhere, it focuses only on New Jersey. “Is New Jersey trying to step into the federal territory?” he argued. “[The state is] regulating commerce in-state even if it’s regulating something coming from Texas or China.”

Judge Pitman remained fairly quiet throughout. The only interjection came during final remarks, as Blackman promoted scientific and artistic values of the CAD files as a piece of speech. “These have value on a screen,” the attorney said. “They’ve been in a museum, they’ve been studied…”

“Have you ever been to a modern art museum?” the judge interjected. A lot meets that standard.

The judge applauded the well-thought rationales and said he hoped to get back to everyone soon. He asked for final remarks, and Flores sprung up: “Federal law does not stop Defense Distributed from distributing these files through the mail, any clarity on that today?” That’s another answer from Judge Pitman that will wait—Low and New Jersey said they’d formally respond in a one-page court filing.