In 1931, the U.S. Supreme Court ruled in Near v. Minnesota that prior restraint — censorship — was permissible only to prevent serious breaches of national security, incitement to violence, and the publication of obscenity. It was Near to which the court looked in 1971 when it ruled that The New York Times and The Washington Post could resume publishing the Pentagon Papers, the government’s secret history of the Vietnam War.
Yet the rise of new doomsday technologies has put a crimp in Near. The latest example: efforts by a radical activist named Cody Wilson to publish blueprints on the internet describing how to use a 3D printer to produce an untraceable plastic gun. As I wrote for WGBH News several weeks ago, the case, based in Washington State, was reminiscent of one involving a left-wing magazine called The Progressive, which in 1979 sought to publish an article describing how to build a hydrogen bomb. In both instances, judges temporarily banned publication. The Progressive eventually published its article, and yet somehow we’re all still here.
Unfortunately U.S. District Court Judge Robert Lasnik is allowing the muzzling of Wilson to drag on, ruling on Monday that the temporary restraining order he had put in place on July 31 would not be lifted until the case has been resolved. According to The New York Times, Lasnik ruled that Wilson’s First Amendment rights “are dwarfed by the irreparable harms the states are likely to suffer if the existing restrictions are withdrawn and that, over all, the public interest strongly supports maintaining the status quo through the pendency of this litigation.”
And yet, the Times continues, the plans Wilson wants to publish are already leaking out here and there, thus showing the futility of censorship.
Should a radical activist be allowed to publish instructions for using a 3D printer to create a fully operational plastic handgun? That’s the question facing U.S. District Court Judge Robert Lasnik, who has said he will hear arguments this Friday in a case that pits freedom of speech against public safety.
The activist, Cody Wilson, has been trying to upload those plans for five years but had been prevented from doing so by the federal government. He nearly succeeded last month, after the State Department withdrew its objections. But Lasnik issued a temporary restraining order in response to a lawsuit filed by eight states and the District of Columbia. Although Lasnik, who’s based in Seattle, acknowledged that the case presented “serious First Amendment issues,” he said there was “a likelihood of irreparable harm” if Wilson — described as a “techno-anarchist” in a 2015 Wired magazine profile — had been allowed to move ahead.
If Wilson wins, it is easy to conjure up the evils that might result: an endless supply of untraceable guns that could be smuggled past metal detectors at airports and elsewhere and that could be printed out by thrill-seeking adolescents once 3D technology becomes sufficiently cheap and reliable. But as an equally fraught case from a generation ago demonstrates, the concerns raised by dilemmas like these invariably prove to be overblown.
In 1979, The Progressive, a small left-wing magazine based in Madison, Wisconsin, sought to publish an article on how to build a hydrogen bomb. The magazine claimed that Howard Morland, an Air Force pilot-turned-freelancer writer, had obtained the information entirely from public sources. The government argued that some of the information Morland used wasn’t publicly available, and that in any case he had pulled the information together in such a way that it could accelerate the process of rogue nations acquiring nuclear weapons.
Publishing instructions on how to build a nuke might not seem strictly necessary. But The Progressive’s editor, Erwin Knoll, defended his motives. In an essay he wrote when Morland’s article was finally published, he said the article was meant to spark debate. “We hope that debate will be a beginning — a beginning of a process in which all of the nuclear policies pursued by our Government will be held up to public scrutiny and review,” he wrote. “We hope that the process will end in a reversal of those policies and an end to the suicidal nuclear arms race in which we have been unwitting, uninformed participants.”
Like Judge Laskin in the plastic-handgun case, U.S. District Court Judge Robert Warren issued a temporary restraining order against The Progressive, arguing that the harm caused by censorship paled in comparison to the prospect of nuclear war. “A mistake in ruling against The Progressive will seriously infringe cherished First Amendment rights,” Warren wrote. But, he added portentously, “A mistake in ruling against the United States could pave the way for thermonuclear annihilation for us all. In that event, our right to life is extinguished and the right to publish becomes moot.”
In arriving at his decision, Warren relied on two Supreme Court precedents. In Near v. Minnesota (1931), the court identified a few narrow exceptions to the First Amendment prohibition on censorship — including a serious breach of national security, which Warren applied to the Morland article. In New York Times v. United States (1971), the court ruled that the Times and The Washington Post could publish the Pentagon Papers, the federal government’s secret history of the Vietnam War, which would seem to cut against the government’s case regarding The Progressive. Warren, though, decided that the Pentagon Papers involved historical material rather than the possibility of future harm, and that The Progressive was also seeking to violate a specific federal law prohibiting the publication of atomic secrets.
Judge Warren was well aware of his responsibility as a guardian of the First Amendment, and he urged the two parties to come up with a voluntary agreement that would have allowed The Progressive to publish while omitting the most incendiary material. Before he could issue a final ruling, though, the matter was rendered moot when a newspaper in Madison published a letter containing substantially the same information as the Morland article. The case was dropped, and The Progressive published the Morland article under the headline “The H‐bomb secret: How we got it — why we’re telling it.”
The government’s and Judge Warren’s concerns proved to be unfounded. The information revealed by The Progressive has never been traced to the development of a nuclear weapon, even though terrorist groups such as Al-Qaeda and ISIS would love nothing better than to develop their own nukes. Building nuclear weapons involves a lot more than reading an article about it.
The threat posed by Cody Wilson’s plastic-handgun instructions is less existential but also more immediate. Though buying guns illegally (or stealing them) is easier than printing them out today, that is likely to change over the next few years. But the way to ensure public safety without violating the First Amendment is to outlaw activity, not speech. Plastic handguns are illegal unless they contain metal components. Guns without serial numbers are illegal.
“The distinction between regulating information about guns and regulating a tool that would automatically allow someone to manufacture a gun matters,” writes Boston University law professor Andrew Sellars at Slate. Echoing Erwin Knoll’s earlier argument, Sellars adds: “We protect speech so strongly under the First Amendment in part because we want to ensure unfettered discussion of policy matters.”
By temporarily preventing Wilson from publishing his blueprints, Judge Lasnik has already violated Wilson’s — and our — First Amendment rights. Let’s hope that on further reflection he comes to understand that when we try to ensure safety by suppressing free speech, we end up with neither.
