Biden Executive Order has First Amendment Implications

As NRA-ILA noted last week, President Joe Biden has signed an executive order creating a “task force” bent on “combatting emerging firearm threats,” that purports to target “machinegun conversion devices and unserialized, 3D-printed firearms.” A White House press release accompanying the order, made clear that the government will be tasked with creating a taxpayer-funded report that is to be used to push lawmakers to increase the power and resources of the federal bureaucracy, noting, “The report will include any additional authorities or funding the federal agencies need from Congress in order to complete this work.”

Given the Biden-Harris administration’s anti-gun record, Americans have every reason to believe that the order will be used to attack Second Amendment rights. However, certain aspects of the order suggest the administration is also seeking to undermine the First Amendment right to freedom of speech.

Since before the Founding, Americans have enjoyed the right to make their own firearms without government interference. Barring state law to the contrary, this practice remains lawful today.

The method of manufacture, whether it be a home workshop with a drill press or a home office with a 3D printer, does not change the underlying federal law. Of course, any method of manufacture, including 3D printing, that can be used to create lawful homemade firearms can also be misused to create unlawful firearms – such as firearms that would violate the Undetectable Firearms Act.

Biden’s executive order targets modern manufacturing processes in ways that implicate the First Amendment.

The order stated that the “task force” report shall include:

(iii) an assessment of existing authorities, including export and import laws, that regulate software or technology used for 3D printing firearms, including undetectable firearms;

(iv) an assessment of the technological feasibility of 3D printers proactively blocking the functional capacities of software used to 3D print undetectable firearms;

                …

(vi) an interagency plan for effective coordination between the Department of Justice and the Department of Commerce to limit the illegal export or import of software or technology on the internet that can be readily used to illegally 3D print firearms, including unserialized or undetectable firearms;

Note the order emphasized assessing plans to restrict software and its capabilities to target 3D printed firearms. This implicates the First Amendment.

Under the law, software or computer code is generally treated as speech.

In 1999, the U.S. Court of Appeals for the Ninth Circuit addressed this matter in the case Bernstein v. U.S. Department of Justice. The case concerned encryption software, which the government said could not be posted on the internet because such software was categorized as a munition subject to severe export control regulations.

The court held that the encryption software at issue was protected speech. Further, the court held that as speech, the software was “entitled to the protections of the prior restraint doctrine.” The prior restraint doctrine makes clear that the government cannot preemptively restrict the publication of speech in almost all circumstances.

To give a classic example of a prior restraint, in 17^th century Britain, printing presses were licensed. An item summarizing the British regime explained,

The ordinance prohibited the printing, binding, or sale of books except by persons licensed under authority of Parliament and made the Stationers the agent of Parliament for the purpose of licensing printers. Anonymous publications were banned, as were the reprinting or importation of previously printed works. The ordinance authorized the Stationers to conduct searches and seizures of unlicensed publications, destroy unlicensed printing machinery, and to arrest those suspected of printing without a license.

The First Amendment rejects this type of regime and imposes the utmost skepticism on any other type of prior restraint on speech. As the U.S. Supreme Court explained in Bantam Books, Inc. v. Sullivan (1963), “Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.”

At present, Biden’s executive order only requires his government “task force” to assess options to curtail software capable of assisting in the creation of 3D printed firearms. As the “task force” includes the Attorney General, one could naively hope that the group would be apprised of First Amendment jurisprudence. However, given this administration’s relentless attacks on the Second Amendment, and its willingness to undermine the First Amendment in pursuit of its goals, gun owners and other Bill of Rights supporters should view Biden’s executive order with the utmost suspicion.