US District Court Judge Robert Lasnik, a Clinton appointee, held an emergency hearing this afternoon in Washington State concerning a request for a Temporary Restraining Order to prevent Defense Distributed from publishing their files effective tomorrow. The TRO was sought by the Attorneys General of Washington State, Connecticut, Maryland, Oregon, Massachusetts, New York, New Jersey, Pennsylvania, and the District of Columbia.
From the docket entry:
MINUTE ENTRY for proceedings held before Judge Robert S. Lasnik- Dep Clerk: Kerry Simonds; Pla Counsel: Jeff Rupert, Jeff Sprung, Kristin Beneski, Todd Bowers; Def Counsel: Joel Ard, Josh Blackman, Eric Soskin, Tony Coppolino; CR: Nancy Bauer; Time of Hearing: 2:00 p.m.; Courtroom: 15106; Motion Hearing held on 7/31/2018 re 2 MOTION for Temporary Restraining Order filed by State of Washington. The Court addresses the parties. After hearing the arguments of counsel, and for reasons stated on the record, the Court GRANTS the Motion for Temporary Restraining Order and schedules a hearing for 8/10/2018 at 9:00 AM in Courtroom 15106 before Judge Robert S. Lasnik. An Order shall issue. (KERR) (Entered: 07/31/2018)It is quite questionable whether Judge Lasnik actually had the authority to issue such an order. Moreover, it is also questionable whether the plaintiffs had any standing in this case. Of course, none of this has stopped activist judges determined to stop any and all actions decided by the Trump Administration.
As attorney and law professor Josh Blackman stated in his initial letter to the court:
For reasons we will explain in a supplemental pleading—filed seriatim to accommodate the rapid pace of this litigation—the Plaintiffs cannot succeed on the merits: the State Department’s actions are not subject to judicial review, the duty to notify Congress has not yet been triggered, and the Commodity Jurisdiction procedure simply does not apply. See Exhibit D.Blackman goes on to say in a subsequent letter that the District Court for the Western District of Washington lacks "subject matter jurisdiction."
Fortunately, the bedrock principles of the First Amendment make this case much easier. A finding that a constitutional right “‘is either threatened or in fact being impaired’. . . mandates a finding of irreparable injury.”7 And “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”8 Outside of court papers, the Attorney General of Washington bluntly acknowledged the purpose of his litigation: to “make it as difficult as humanly possible to access this information.”9 That statement against interest, by itself, is enough to deny the Temporary Restraining Order in its entirety.
The Plaintiffs can challenge the proposed rule in due time when it is finalized. But they cannot mount a collateral attack in order to censor speech.
This ruling illustrates even more poignantly that Brett Kavanaugh needs to be confirmed sooner than later to replace Justice Anthony Kennedy.
UPDATE: Judge Robert Lasnik did issue a seven page opinion to accompany his temporary restraining order. It can be found here. As it is, he bought the argument of Washington State et al in its entirety and ignored the free speech issues completely. The only mention of the First Amendment was with reference to the original complaint filed by Defense Distributed and SAF.
From the ruling:
Plaintiffs have also shown a likelihood of irreparable injury if the downloadable CAD files are posted tomorrow as promised. A side effect of the USML has been to make it more difficult to locate and download instructions for the manufacture of plastic firearms. If an injunction is not issued and the status quo alters at midnight tonight, the proliferation of these firearms will have many of the negative impacts on a state level that the federal government once feared on the international stage. Against this hardship is a delay in lifting regulatory restrictions to which Defense Distributed has been subject for over five years: the balance of hardships and the public interest tip sharply in plaintiffs’ favor.Declan McCullagh writing at Reason.com notes:
Absent from Lasnik's 7-page ruling is any consideration of the First Amendment implications of censoring information about building firearms. This has been legal since before the United States was founded; Reason's special Burn After Reading issue even includes helpful instructions for constructing a handgun from legally available parts.The files, as I call them, Freedom Files, are now widely available on the Internet if not available currently at www.defcad.com.
Crucially, also absent from the opinion is any recognition of the difficulty of censoring information once it's already been published to the web.