Summary
The United States Court of Appeals for the Fifth Circuit denied rehearing en banc in a challenge by Defense Distributed and the Second Amendment Foundation to restrictions imposed by the Department of State on publication of firearm-related digital designs. The order records the en banc vote and includes Judge Elrod's dissent, joined by Judges Jones, Smith, and Clement, which argues that the panel improperly upheld a content-based prior restraint without adequately analyzing likelihood of success, irreparable harm, and the asserted national-security interest.
Topics
Practice areas
Questions Presented
- Whether the petition for rehearing en banc should be granted.
- Whether the panel's preliminary-injunction analysis warranted en banc review because it allegedly failed to address likelihood of success on the merits, relied on an asserted national-security interest to justify a prior restraint, and improperly analyzed irreparable harm.
Key quotations
“The Petition for Rehearing En Banc is DENIED.” (slip op. at 1)
“The panel opinion’s flawed preliminary injunction analysis permits perhaps the most egregious deprivation of First Amendment rights possible: a content-based prior restraint.” (slip op. at 2)
“Allowing such a paltry assertion of national security interests to justify a grave deprivation of First Amendment rights treats the words “national security” as a magic spell, the mere invocation of which makes free speech instantly disappear.” (slip op. at 4)
Factual background
Defense Distributed sought to publish or distribute computer-aided gun-design files. The Department of State asserted national-security and national-defense interests in restricting the distribution of those designs. The panel opinion addressed preliminary injunctive relief, and the dissent from denial of rehearing characterized the restriction as a content-based prior restraint on speech.
Procedural history
The appeal arose from the United States District Court for the Western District of Texas. After the Fifth Circuit panel issued an opinion on September 20, 2016, reported at 838 F.3d 451, a party sought rehearing en banc. The court denied rehearing because a majority of active, non-disqualified judges did not vote in favor. Judge Elrod, joined by Judges Jones, Smith, and Clement, dissented from the denial.