SCOTUS: Distributed Defense v Grewal cert petition

Kharn · Feb 20, 2021

So Distributed Defense was happily carrying on their business in Texas, when the NJ AG sent them a cease & desist order from NJ. DD's business is 3d printed gun files, distributed for free or nominal cost, to anyone who wants one. NJ declared in the C&D that distributing such files could cause someone to violate a NJ law.

DD immediately ran to federal court in Texas, crying that the NJ AG was a meanie and violating their 1A and 2A rights and should be told to stick his C&D where the sun doesn't shine. They beat NJ AG to court, who filed in the 3rd Circuit days later.

NJ AG complains that he shouldn't face a court in gun-friendly 5th Circuit and should be able to force DD to litigate the C&D in the anti-gun 3rd Circuit.

The 5th Circuit said NJ AG intruded into Texas to harass a Texas entity, so he made his bed and he can lay in it.

NJ AG's cert petition, response due 24 February

SCOTUSBlog commentary

Fifth Circuit opinion

teratos · Feb 20, 2021

This is going to be a tough one for NJ. I bet if the AG read the 1971 version of The Anarchists Cookbook he’d crap his pants.

Kharn · Feb 20, 2021

teratos said:
This is going to be a tough one for NJ. I bet if the AG read the 1971 version of The Anarchists Cookbook he’d crap his pants.

I think so as well.
The precedent seems to be much more about people trying to drag the government into places more convenient for the individual. Gerwal is pushing for government overreach about prospective third-party conduct and having a chilling effect on both First and Second Amendment conduct. In that situation, the government should be the one paying every single travel bill.

JoeRinMD · Feb 20, 2021

teratos said:
This is going to be a tough one for NJ. I bet if the AG read the 1971 version of The Anarchists Cookbook he’d crap his pants.

I'm glad to see the NJ AG get slapped down in this case...huge overreach.

BTW, the Anarchist's Cookbook was our go-to manual when I was 12 or 13. We dreamed of doing some of the recipes, like making nitroglycerin. We would have tried if we had access to the chemical intermediates. And somehow I survived with all my fingers intact.

JoeR

teratos · Feb 20, 2021

JoeRinMD said:
I'm glad to see the NJ AG get slapped down in this case...huge overreach.

BTW, the Anarchist's Cookbook was our go-to manual when I was 12 or 13. We dreamed of doing some of the recipes, like making nitroglycerin. We would have tried if we had access to the chemical intermediates. And somehow I survived with all my fingers intact.

JoeR

Same on the nitroglycerin. Still tempted. I have a copy somewhere around here.

JoeRinMD · Feb 20, 2021

teratos said:
Same on the nitroglycerin. Still tempted. I have a copy somewhere around here.

Do you remember the old Gilbert Chemistry sets? We used to keep buying out the inventory of sulphur and potassium nitrate (saltpeter) at our local hobby shop. And we all knew where to get charcoal. My father worked as a pipefitter, so there was always pipe and fittings around the workshop. Hmmmm....now what could a couple 12 or 13 year olds possibly do with that combination of stuff??? :innocent0

JoeR

babalou · Feb 20, 2021

ahhhhh

JoeRinMD said:
Do you remember the old Gilbert Chemistry sets? We used to keep buying out the inventory of sulphur and potassium nitrate (saltpeter) at our local hobby shop. And we all knew where to get charcoal. My father worked as a pipefitter, so there was always pipe and fittings around the workshop. Hmmmm....now what could a couple 12 or 13 year olds possibly do with that combination of stuff???

JoeR

sigh of joy in remembrance. Brings a huge smile to my face. Thank you guys. :party29:

motorcoachdoug · Feb 21, 2021

This will be really sweet if SCOTUS does agree with the 5th circuit appeals court. The stupid son of a gun went on tv and said he would shut them down and screw all the people of the us who wanted the files. Total overreach and total abuse of authority as well.

Pinecone · Feb 21, 2021

teratos said:
Same on the nitroglycerin. Still tempted. I have a copy somewhere around here.

Had a science teaching 8th grade, former Army demo guy, make nitrocellulose in the classroom.

And demoed it (in BOTH senses of the word).

KingClown · Feb 22, 2021

Good thing the internet is forever. Even if he won the case the files are there forever. People should be paying attention though since this also effects 1A. If they get shutdown that says the government can basically shut anyone up saying stuff they dont like.

Yes I know this is a CAD file but my understanding is since its on the interwebs that its protected.

Allen65 · Feb 22, 2021

KingClown said:
Yes I know this is a CAD file but my understanding is since its on the interwebs that its protected.

9th Circuit decided that source code is free speech in Bernstein vs US: https://en.wikipedia.org/wiki/Bernstein_v._United_States

But the concept hasn't been decided at SCOTUS yet. The Government backed down in that case rather than appeal to SCOTUS, and until now GOV hasn't tried to do any other prior restraint of dissemination of code domestically.

And the Bernstein decision was for source code, not executables such as G-code for CNC, so maybe there's a separate issue that might result in a different decision?

whistlersmother · Feb 22, 2021

No, not separate issue.

Just because a machine can execute the code, doesn't affect free speech.

The court ruled that the exchange of ideas may be better facilitated using source code than written prose, IIRC. Hence, protected speech.

Steel Hunter · Feb 22, 2021

Allen65 said:
9th Circuit decided that source code is free speech in Bernstein vs US: https://en.wikipedia.org/wiki/Bernstein_v._United_States

But the concept hasn't been decided at SCOTUS yet. The Government backed down in that case rather than appeal to SCOTUS, and until now GOV hasn't tried to do any other prior restraint of dissemination of code domestically.

And the Bernstein decision was for source code, not executables such as G-code for CNC, so maybe there's a separate issue that might result in a different decision?

It makes no difference on the syntax of code. There are interpreted languages that look like plain text and also those that use specific non-human readable instructions. Both can be equivalent in terms of expressing speech.

Kharn · Feb 23, 2021

Allen65 said:
9th Circuit decided that source code is free speech in Bernstein vs US: https://en.wikipedia.org/wiki/Bernstein_v._United_States

But the concept hasn't been decided at SCOTUS yet. The Government backed down in that case rather than appeal to SCOTUS, and until now GOV hasn't tried to do any other prior restraint of dissemination of code domestically.

And the Bernstein decision was for source code, not executables such as G-code for CNC, so maybe there's a separate issue that might result in a different decision?

Gcode is really bad to distribute as it is customized for your individual printer, filament, preferences, good practices, etc.

The STEP or STL files are much more practical and significantly smaller.

Plus, those files can easily be someone's artistic expression in a digital form. Such as when Josh Shapiro, PA AG, didn't like 3d printed guns, and someone named the Joshie Washie design named after Shapiro, bearing his likeness, and commentary on him.

Allen65 · Feb 23, 2021

Kharn said:
Gcode is really bad to distribute as it is customized for your individual printer, filament, preferences, good practices, etc.

The STEP or STL files are much more practical and significantly smaller.

Plus, those files can easily be someone's artistic expression in a digital form. Such as when Josh Shapiro, PA AG, didn't like 3d printed guns, and someone named the Joshie Washie design named after Shapiro, bearing his likeness, and commentary on him.

I don't disagree. I was just stating that the Bernstein decision hinged on source code having been found to be a means of expression, therefore protected under 1A. I would assume that other expressive file formats, like 3D model files, would probably have the same protection. Actual executable code might be protected, but I'm not aware of any case law on that specifically.

Kharn · Feb 24, 2021

A who's-who of left-leaning states chimes in to say they should be able to tell anyone to kiss the ring from afar and force citizens to travel to the sender's courts to defend their actions.

NEW YORK,CALIFORNIA,COLORADO,CONNECTICUT,DELAWARE,HAWAI‘I,ILLINOIS,MAINE,MARYLAND,MASSACHUSETTS,MICHIGAN,MINNESOTA,NEVADA,NEW MEXICO,OREGON,PENNSYLVANIA,RHODE ISLAND,VERMONT,VIRGINIA, AND WASHINGTON, AND THE DISTRICT OF COLUMBIA amicus

Allen65 · Feb 25, 2021

Kharn said:
A who's-who of left-leaning states chimes in to say they should be able to tell anyone to kiss the ring from afar and force citizens to travel to the sender's courts to defend their actions.

NEW YORK,CALIFORNIA,COLORADO,CONNECTICUT,DELAWARE,HAWAI‘I,ILLINOIS,MAINE,MARYLAND,MASSACHUSETTS,MICHIGAN,MINNESOTA,NEVADA,NEW MEXICO,OREGON,PENNSYLVANIA,RHODE ISLAND,VERMONT,VIRGINIA, AND WASHINGTON, AND THE DISTRICT OF COLUMBIA amicus

They know that playing games with venues and jurisdiction is the only way they can avoid a devastating loss in court. The fact they feel the need to take this legal technicality approach rather than put out substantive arguments on the matter in question is a good sign for our side.

Ponder_MD · Feb 25, 2021

Kharn said:
A who's-who of left-leaning states chimes in to say they should be able to tell anyone to kiss the ring from afar and force citizens to travel to the sender's courts to defend their actions.

NEW YORK,CALIFORNIA,COLORADO,CONNECTICUT,DELAWARE,HAWAI‘I,ILLINOIS,MAINE,MARYLAND,MASSACHUSETTS,MICHIGAN,MINNESOTA,NEVADA,NEW MEXICO,OREGON,PENNSYLVANIA,RHODE ISLAND,VERMONT,VIRGINIA, AND WASHINGTON, AND THE DISTRICT OF COLUMBIA amicus

This is madness. Sure, the usual suspects are in this list but Virginia? Nevada?

I think Maryland and Vermont need to remove the words "Freedom" from their state motto.

Occam · Feb 25, 2021

This is why every time I write a contract with a client, we end up playing ping pong over which state will be the venue for any civil court gladiator sports should things go sideways. Everybody always wants the home court advantage. I can see how that argument is a thing when it's actually negotiated (like in a sales contract), but can an outside entity really just wave their magic wand and insist that you appear wherever they demand, on a whim, to face their local laws when you're not established in that state, don't deliver any goods into that state, and are effectively just making information available? The state should be focused on ruining the lives of their own residents for prosecution of illegally reading and whatnot, if that's how they want their residents to live (and those residents vote for the self-inflicted wound of having such a government running their local lives). This whole topic is toxic at ever level.

Kharn · Feb 25, 2021

Occam said:
This is why every time I write a contract with a client, we end up playing ping pong over which state will be the venue for any civil court gladiator sports should things go sideways. Everybody always wants the home court advantage. I can see how that argument is a thing when it's actually negotiated (like in a sales contract), but can an outside entity really just wave their magic wand and insist that you appear wherever they demand, on a whim, to face their local laws when you're not established in that state, don't deliver any goods into that state, and are effectively just making information available? The state should be focused on ruining the lives of their own residents for prosecution of illegally reading and whatnot, if that's how they want their residents to live (and those residents vote for the self-inflicted wound of having such a government running their local lives). This whole topic is toxic at ever level.

I certainly agree the government should have the burden of traveling to the venue where the conduct occurred.

DD did business in TX, NJ alleges they could induce someone to commit crime in NJ and must thus cease their activities in Texas, by contacting them in Texas? NJ should go to Texas to explain how they're justified in chilling DD's First Amendment rights.

The government should always be the one at the disadvantage.

And the states whining about limited resources to pursue cases was a hoot, because defendants have so many resources to go after over zealous prosecutors in faraway courts?

SCOTUS: Distributed Defense v Grewal cert petition

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