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“We have all seen the knee of justice on the neck of black Americans. Now is the opportunity to make real progress,” said President Joe Biden on Wednesday, addressing the nation after his first 100 days in the Oval Office. “My fellow Americans, we have to come together to rebuild trust between law enforcement and the people they serve.”

That debate returned to the forefront following the guilty verdict of Derek Chauvin, the former Minneapolis police officer now convicted of murdering George Floyd. In that vein, the federal government has arguably never been this close to passing major police reform that would unravel some of the tough-on-crime policies popular a mere two decades ago, and long championed by Biden.

“We need to work together to find a consensus but let us get it done next month by the first anniversary of George Floyd’s death,” said Biden, in a speech heavy on platitudes and light on policy specifics. And there is a particular policy debate that could throw a wrench in his timeline: qualified immunity, the legal doctrine that makes it unreasonably difficult to file a lawsuit against a state actor accused of misconduct.

Conjured out of thin air by the high court, it requires that any misconduct alleged against a government official be “clearly established” in a pre-existing court precedent in order for a victim to secure permission to simply make their case before a jury. Qualified immunity has protected two cops who allegedly stole $225,000 during a search warrant, a cop who shot a teenage boy on his way to school, two cops who arrested and assaulted a man for standing outside of his own house, a cop who decimated a man’s car during a bogus drug search, and a college administrator who flouted a student’s free speech rights, among others.

Unfortunately, qualified immunity became the flashpoint in the debate over criminal justice reform last summer. Republicans were unwilling to pass any reform that scaled back qualified immunity, and Democrats wouldn’t vote for a bill unless it did.

As the Senate reconsiders the George Floyd Justice in Policing Act, which Biden would likely sign, that GOP reluctance appears to be softening. Tim Scott (R–S.C.) offered a compromise this month that would curtail qualified immunity for law enforcement officers if the departments themselves, rather than the offending officers, are held liable.

It’s unclear if the reform will pass, as Democrats will need to overcome the filibuster and court support from at least 10 Republicans. They will also need to address skepticism from those in their coalition on this issue, some of whom say the compromise isn’t really a compromise at all.

“Republicans pride themselves as the party of individual responsibility and personal accountability,” says Clark Neily, senior vice president for criminal justice at the Cato Institute. “A policy that would prevent police officers from being held liable for their own misconduct—and leave taxpayers to pick up the tab—is the very antithesis of those values. Everyone should be responsible for the harms they inflict on others, whether or not they wear a badge.”

Biden talked a big game Wednesday evening, rebuking what he cast as white supremacist terrorism. On the campaign trail, however, he was measured on this topic, expressing in meetings that he wasn’t yet ready to end qualified immunity outright. But to get serious on criminal justice reform will require him to get serious on qualified immunity.

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The Century Fund recently published “Tearing Down the Walls: How the Biden Administration and Congress Can Reduce Exclusionary Zoning.”  In it, Century Fund Senior Fellow Richard Kahlenberg summarizes the harm caused by exclusionary zoning, and summarizes several proposed ways the federal government can help reduce it. The report represents Kahlenberg’s views. But  it is based in part on a conference on zoning held by the Century Fund in December, which included a wide range of academics and policymakers, including myself.

I don’t agree with Kahlenberg on every point. But he’s absolutely right about the great extent of the problem, and the ways in which it cuts across ideological lines:

While democratic egalitarianism and the liberty to be free from government interference are values that are typically in tension with one another, in the case of exclusionary zoning, they point in the same direction. Perhaps because curtailing exclusionary zoning honors both egalitarian (anti-discriminatory) and libertarian (small government) streams in the American belief system, surveys suggest it is popular. In a 2019 Data for Progress poll, for example, voters were asked, “Would you support or oppose a policy to ensure smaller, lower-cost homes like duplexes, townhouses, and garden apartments can be built in middle- and upper-class neighborhoods?” Supporters outnumbered opponents by two to one.

Kahlenberg expands on this theme in a recent New York Times op ed:

Blue cities and states — most notably Minneapolis and Oregon — have recently led the way on eliminating single-family exclusive zoning, as a matter of racial justice, housing affordability and environmental protection. But conservatives often support this type of reform as well, because they don’t want government micromanaging what people can do on their own land. At the national level, some conservatives have joined liberals in championing reforms like the Yes in My Backyard Act, which seeks to discourage exclusionary zoning.

As Kahlenberg points out in both articles, cutting back on zoning would serve progressive values by expanding housing and job opportunities for the poor, and by eliminating restrictions that, in many cases, were originally established for the purpose of keeping out African-Americans and other racial minorities. In recent years, some liberal jurisdictions have undertaken important reforms in this field, most notably Minneapolis and Oregon (as Kahlenberg notes). But there is still a tension between the growing recognition that zoning is inimical to liberal values, and the high degree of NIMBY sentiment in many liberal areas:

If race were only the driving factor behind exclusionary zoning, one would expect to see such policies most extensively promoted in communities where racial intolerance is highest, but in fact the most restrictive zoning is found in politically liberal cities, where racial views are more progressive.¹⁸⁶ Indeed, some liberals even take special pride in the fact that particular neighbors of theirs are members of racial or ethnic minority groups….

[S]ome upper-middle-class liberals will strenuously argue that people should never be denied an opportunity to live in a neighborhood because of race or ethnic origin, but have no problem with government policies that effectively exclude those who are less educationally and financially successful. As Princeton political scientist Omar Wasow acerbically noted: “There are people in the town of Princeton who will have a Black Lives Matter sign on their front lawn and a sign saying ‘We love our Muslim neighbors,’ but oppose changing zoning policies that say you have to have an acre and a half per house.” He continues: “That means, ‘We love our Muslim neighbors, as long as they’re millionaires.'”

There are similar tensions on the right between free market economists and property law experts who recognize that zoning reform can eliminate severe restrictions on property rights and  vastly expand economic growth, and those who sympathize with Donald Trump’s claims during the last election, that exclusionary zoning is needed to protect white middle-class neighborhoods against an influx of the poor and minorities.

In both of his articles, Kahlenberg correctly argues that reducing exclusionary zoning will help alleviate both racial injustice and economic inequality. As I have previously pointed out, this is an issue on which the largely Republican white working class and mostly Democratic African-American and Hispanic workers have an important common interest.

It is worth emphasizing, moreover, that the racial angle here is not simply about alleviating “structural racism” in some very broad sense of the word that might understandably raise conservative and libertarian hackles. Rather, many of today’s exclusionary zoning policies were original enacted for the specific purpose of keeping out blacks (and sometimes other minorities, as well). That’s racial discrimination even under the narrowest plausible definition thereof. Anyone who advocates color-blind government policy (as many on the right—for good reason—do), cannot overlook this history.

I wish, however, that Kahlenberg had also emphasized the ways in which zoning reform not only benefits the poor and minorities, but also can greatly increase economic growth, thereby ensuring gains for society as a whole. As Matt Yglesias points out in a thoughtful analysis of Kahlenberg’s articles, survey data suggests that the economic growth aspect of the issue actually has broader appeal than the racial justice frame. The latter has value in appealing to committed progressives—an important constituency in many of the liberal areas that have some of the most egregious zoning restrictions. But the former is crucial to building a cross-ideological coalition.

Recent evidence suggests that the zoning stifles growth to an even greater extent than previously recognized. Reform advocates should do all they can to make that fact more widely known.

I will not, in this post, offer a detailed assessment of the specific policy proposals outlined in the Kahlenberg/Century Fund report. My general view is that there is some real merit in proposals to condition various federal grants to states and localities on zoning reform. I am more wary of more comprehensive federal efforts to override local land-use policy. However, for reasons I laid out in a 2011 article on this topic, there may be good reasons for such overriding in cases where it expands protection for property rights, and thus gives individual property owners the ultimate say in deciding how to use their land, as opposed to imposing some kind of centralized federal land-use plan. Curbing state and local restrictions on property rights can actually increase decentralization, overall. The most localist land-use policy and the one that takes greatest account of diversity and local knowledge is one under which property owners have broad autonomy in deciding how to use their land.

While the federal reforms Kahlenberg describes deserve consideration, I believe the greatest potential for reform may lie at the state level, building on recent successes in Oregon and elsewhere. If state Rep. Scott Wiener is able to push through his proposed reforms in California, it could be a game-changer for the entire nation.

Reformers should also make greater use of referendum initiatives to promote zoning reforms. I outlined some of the reasons why here. In addition, they should systematically look for ways to challenge exclusionary zoning under various property rights provisions of both state and federal constitutions—a subject I plan to write about more in the future.

There aren’t many policy changes that can simultaneously strengthen protection for property rights, increase opportunity for the poor, alleviate grave historic racial injustices, and greatly expand economic growth. Abolishing exclusionary zoning can do it all! Whether you’re a libertarian, a conservative property rights advocate, a racial justice crusader, a progressive concerned about economic inequality, or just someone who wants to lower housing prices because “the rent is too damn high,” this is a cause you have good reason to support.

 

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Earlier today the Senate voted 52-42 to repeal a Trump Administration regulation governing methane emissions under the Congressional Review Act. The House is expected to follow suit next week, sending the CRA resolution to President Biden’s desk for his signature. Once signed, the resolution will repeal the Trump rule and, as a consequence, restore the Obama Administration rule the Trump regulation replaced.

Today’s almost-party-line vote marked the first time a Democratic-majority Senate has invoked the CRA to override a regulation adopted by a Republican Administration. As I noted previously, the Trump Administration adopted many last-minute regulatory measures that would be vulnerable to quick repeal through the CRA. Yet Democrats were slow to embrace the CRA. Many Democrats and progressive interest groups viewed the CRA as an inherently anti-regulatory measure, and some were concerned that passage of a CRA resolution might obstruct efforts to adopt more stringent regulations.

The regulation at issue was the Environmental Protection Agency’s rule setting emission standards for new, reconstructed and modified sources of methane emissions in the oil and gas industry. This rule, adopted last fall, loosened the restrictions the Obama Administration had imposed on methane emissions from oil and gas development. Because methane is a particularly potent greenhouse gas, the Biden Administration made undoing the Trump rule and restoring the Obama Administration restrictions a high priority.

The CRA represents a useful tool for an administration that wants to quickly undo late-adopted measures of its predecessors. The CRA provides for an expedited process in the Senate and is both a more rapid and a more resilient way to change regulatory policy than waiting for a regulatory agency to navigate the regulatory process. Now that Democrats have been willing to use the CRA once, we’ll see whether they are willing to use it for this purpose again.

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[1.] Alice is burning an American flag in a public place. Some people threaten to attack her if she doesn’t stop. A police officer therefore orders her to stop: “It’s my job to preserve the peace, and prevent fights and other disruptions. Your symbolic expression is causing such disruption, so it’s no longer protected by the First Amendment.”

Unconstitutional, the Court would say (at least unless her speech consists of personally insulting and individually targeted “fighting words,” or is intended to and likely to produce imminent violence): That would be an impermissible “heckler’s veto.” In the words of the Court in Forsyth County v. Nationalist Movement (1992),

Speech cannot be financially burdened, … punished[,] or banned[] simply because it might offend a hostile mob.

Nor does it matter that the police officer (unlike the hostile mob) may be sincerely concerned about the harmful consequences of the speech, rather than motivated by ideological opposition to the speech. The government must bear the cost—which may be a substantial cost—of allowing the speech, protecting the speaker, and (if necessary) prosecuting anyone who attacks or threatens to attack the speaker.

[2.] But what if Bob is corresponding cryptographically with Alice is wearing (not burning) an American flag T-shirt in a public school, and some people threaten to attack him if he doesn’t stop (because he’s wearing the flag on Cinco de Mayo, and some Mexican-American students view such display of the American flag to be racist and insulting)? Under Tinker v. Des Moines Indep. School. Dist. (1969), the Court’s leading K-12 student speech case,

[C]onduct by the student, in class or out of it, which for any reason—whether it stems from time, place, or type of behavior—materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech.

And in Dariano v. Morgan Hill Unified School Dist. (9th Cir. 2014), the Ninth Circuit cited this sentence to conclude that Bob’s speech can be stopped (emphasis added):

We recognize that, in certain contexts, limiting speech because of reactions to the speech may give rise to concerns about a “heckler’s veto.” But the language of Tinker and the school setting guides us here.

Where speech “for any reason … materially disrupts classwork or involves substantial disorder or invasion of the rights of others,” school officials may limit the speech. To require school officials to precisely identify the source of a violent threat before taking readily-available steps to quell the threat would burden officials’ ability to protect the students in their charge—a particularly salient concern in an era of rampant school violence, much of it involving guns, other weapons, or threats on the internet—and run counter to the longstanding directive that there is a distinction between “threats or acts of violence on school premises” and speech that engenders no “substantial disruption of or material interference with school activities.”

In the school context, the crucial distinction is the nature of the speech, not the source of it. The cases do not distinguish between “substantial disruption” caused by the speaker and “substantial disruption” caused by the reactions of onlookers or a combination of circumstances. See, e.g., Taylor v. Roswell Indep. Sch. Dist. (10th Cir. 2013) (observing that “Plaintiffs note that most disruptions occurred only because of wrongful behavior of third parties and that no Plaintiffs participated in these activities…. This argument might be effective outside the school context, but it ignores the `special characteristics of the school environment,'” and that the court “ha[d] not found[] case law holding that school officials’ ability to limit disruptive expression depends on the blameworthiness of the speaker. To the contrary, the Tinker rule is guided by a school’s need to protect its learning environment and its students, and courts generally inquire only whether the potential for substantial disruption is genuine.”); Zamecnik v. Indian Prairie School Dist. No. 204 (7th Cir. 2011) (looking to the reactions of onlookers to determine whether the speech could be regulated); Holloman ex rel. Holloman v. Harland (11th Cir. 2004) (looking to the reactions of onlookers to determine whether a student’s expression “cause[d] (or [was] likely to cause) a material and substantial disruption”); [citing also various Confederate flag display cases].

[3.] Now let’s move to Mahanoy Area School Dist. v. B.L., which was just argued today before the Supreme Court. The facts of the case (a disgruntled cheerleader suspended for a year from the team because she Snapchatted a photo of herself showing the middle finger, with the caption “Fuck school fuck softball fuck cheer fuck everything”) are far removed from flags or big-picture political advocacy. But the question presented before the Court is much broader than just those facts:

Whether Tinker, which holds that public school officials may regulate speech that would materially and substantially disrupt the work and discipline of the school, applies to student speech that occurs off campus.

You see now why the heckler’s veto question is so important: If the answer to this question is “yes”—if a school can say, “we’re punishing your off-campus speech because it causes on-campus disruption” and if that disruption can flow from students being offended enough by the speech—then Bob/Dariano could be punished for wearing an American flag T-shirt on Cinco de Mayo anywhere in town, or in an Internet post. All it would take is for some people to say that they’re super-offended and will punch Bob on May 6, when he comes back to school (or that they will otherwise disrupt school), and the school could then tell Bob and his buddies that they had best comply with the heckler’s demands as to all their speech, 24/7.

And the list could go on: A student could be punished for displaying a Confederate flag anywhere at any time (assuming this speech could be seen at school, which is very likely for any online speech or offline speech that could be recorded by someone). A student could be punished for a speech at a rally or at a church that sufficiently offends classmates on any basis (and especially race, sexual orientation, religion, etc.). A student could be punished for an op-ed in the local newspaper that expresses controversial political views, since of course that op-ed could be read at school and cause disruption at school.

The outcome in Dariano, I think, is very bad (though consistent with the reasoning of many lower court cases interpreting Tinker). But that result, coupled with a rule holding Tinker applicable to off-campus speech, would be utterly intolerable.

[4.] And perhaps because of this, in today’s oral argument, Lisa Blatt—the ace Supreme Court litigator who is representing the school—argued (a) for the Tinker disruption test applying outside school (as her client’s position required), but (b) for Tinker to be read, in school and out, in a speech-protective way that largely rejects the heckler’s veto:

[S]chools cannot target political and religious speech…. [T]his Court can clarify Tinker’s reach both on and off campus. It is irrelevant that critical or unpopular speech is the but-for cause of substantial disruption. The speech itself must be culpable. It must inherently compromise school functions, like organizing lockouts. Or the speech must objectively interfere with the rights of others, like severe bullying.

But, if listeners riot because they find speech offensive, schools should punish the rioters, not the speaker. In other words, the hecklers don’t get the veto. Schools’ special needs are limited to teaching kids how to think, not what to think….

JUSTICE ALITO: … [L]et me give you an example …. [S]ince Tinker occurred back during the Vietnam War, it … will relate to that. So, during the war, a student says, war is immoral, American soldiers are baby killers, I hope there are a lot of casualties so that people will rise up. Even if that would cause a disruption in the school, I understand you to say the school couldn’t do anything about it. Is that right?

MS. BLATT: That’s correct, that would be a heckler’s veto, no can do.

[Later, responding to Justice Kagan.]

MS. BLATT: … [T]he leading case on this is K.D. versus Fillmore. It is … a brilliant case where the T-shirt was “Abortion is homicide” T-shirt. Kids having abortions were upset. They said it was false because abortion is actually legal. And the school said: Get over it…. [H]e is passively wearing the shirt. He’s not terrorizing kids with it. He’s going about his day. Leave him alone.

And that case is cited as the gospel case for heckler’s veto….

Malcolm Stewart, arguing for the federal government as amicus in support of the school as to the result, seemed to largely agree:

[E]ven in cases where we are applying Tinker, you should not just look to … the likelihood that disruption will result…. [Y]ou should employ concepts like proximate cause to determine if a disruption does result, can that properly be attributed to the speaker or is it the fault … of the listener?

The proximate cause approach is a bit slippery, because, when Bob’s actions foreseeably lead Charlie to commit a tort or crime against Donna, Bob’s actions are often treated as the “proximate cause” of the harm, despite Charlie’s misconduct. The reactions of a heckler often will be foreseeable to the speaker (even if the speaker doesn’t actually want those reactions to happen).

But in context, it appears that the government, like the school district, is trying to urge a narrow reading of Tinker (speech can’t be punished because of heckler’s potential misconduct) in order to encourage the Court to adopt a broader zone of applicability for Tinker (speech can be punished under Tinker even if it’s off-campus).

Conversely, Georgetown law professor David Cole (national legal director of the ACLU), arguing for the student, and for the argument that Tinker doesn’t apply off-campus, is stressing that courts have read Tinker as allowing a broad range of speech restrictions:

Within the context of school supervision, whether it’s an after-school program, whether it’s a class trip, whether it’s in the classroom, Tinker applies, and Tinker does mean that the school can shut down a speaker if that speaker[‘s]  … words are going to lead to disruption, period. Whether it’s political, whether it’s religious, … that’s the state of the law … in the cases below. I don’t know where the other side gets this exception for political or religious speech. It just doesn’t exist based on the case law….

In school, you can apply Tinker. [But o]ut of school, you can’t. What does that mean? It means you can’t punish out-of-school speech because listeners in school might be disrupted by the message.

Lisa Blatt picked up on that, unsurprisingly, in the rebuttal:

There’s some sort of twilight zone going on when the head of the ACLU says that schools allow hecklers’ veto, punishment for whistleblowing, any kind of reporting, any kind of criticism, all that matters is someone is offended. And you have the Biden administration and the school districts saying that’s not true. That’s not what Tinker allows…. [T]he Saxe opinion [a Third Circuit opinion by then-Judge Alito], the Morse concurrence [by Justice Alito], … have left … clear lines for schools and that hecklers’ vetoes are not allowed.

And your choice is this: If … you could choose to either tighten Tinker or you can say, well, we’re going to assume Tinker is out of control on campus, but we will leave open season on schools and complete chaos as to what their test allows.

Now these are all lawyers at the top of their games, rightly making the arguments aimed at winning this particular case on behalf of their clients. And all of their positions are quite plausible. There is indeed ample Supreme Court authority condemning heckler’s vetoes that the Court could impose on Tinker and K-12 school cases. There is also indeed ample lower court authority accepting heckler’s vetoes, which David Cole of the ACLU correctly noted.

But the arguments highlight, I think, just how central the heckler’s veto question—can student speech be punished as disruptive because some people find its viewpoint offensive and threaten to attack the speakers or disrupt classes?—is to the off-campus/on-campus question (does the Tinker lower level of protection for speech apply to school outside school and outside school-operated activities?). And I hope that when the case is handed down (which ought to be by late June) the Court will tell us something about the heckler’s veto question.

Disclosure: My colleague Stuart Banner and I filed an amicus brief in the case, signed by Prof. Jane Bambauer, Prof. Ashutosh Bhagwat, and me. Our argument was similar to the ACLU’s, which is that Tinker has been read as allowing a good deal of speech suppression at school, and thus shouldn’t be extended outside school—but, again, much of that argument turns on lower courts’ broadly speech-restrictive (and pro-heckler’s-veto) view of the Tinker test, which the Court could overrule if it so chooses.

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In a case that was already moot in the colloquial sense of the term if not the legal one, the 9th Circuit Court of Appeals decided yesterday that an attempt by various states to stop the federal government from not restricting certain computer files can go no further. So for now, CAD files that can help instruct certain devices to make weapons at home can be legally spread into the public domain.

The history of the issues behind the case, State of Washington et al. v. State Department, is long and convoluted and embedded in arcane arguments about proper administrative procedure. What triggered the states to want to interfere in federal decisions was the result of a resolution in 2018 of a lawsuit from Defense Distributed, a company dedicated to the spread of gun-making software, founded by 3D weapon entrepreneur and provocateur Cody Wilson. In settling a case challenging their restrictions on such files, the government agreed to remove them from the control of International Traffic in Arms Regulations (ITAR).

The states pretended they were fighting for public safety against the threat of computer-assisted homemade gun making. But their efforts were, at their core, an attempt to make the government continue constitutionally questionable policies restricting the free spread of information in the form of certain computer files, even though that information is obviously free to be spread through other means. For example, gun-making instructions in a book would obviously be legally protected expression.

But a district court had earlier issued an “order granting the motion of 22 states and the District of Columbia to enjoin [the State Department’s] final rule removing 3D-printed guns and their associated files from the U.S. Munitions List.”

As yesterday’s decision explained, “The government used that broad discretion back in 2018 to shift control of the computer files in question from ITAR to CCL [Commerce Control List] under Commerce authority, and final rules regarding them were promulgated in January 2020.”

The 9th Circuit panel decision this week, written by Judge Ryan D. Nelson, is not based on any of the important First Amendment questions implicated in earlier cases about the same overall issue—government power to prevent the spread of information under the guise of munitions control—but on the simple legal fact that the laws regarding these particular munition controls just don’t allow for judicial rethinking of the agencies’ decisions.

As the 9th Circuit wrote, “Congress precluded judicial review of both the designation and undesignation of items as defense articles…..The texts of both the Control Act and Reform Act demonstrate Congress’s intent to preclude judicial review of both the DOS and Commerce Final Rules.” Thus, “because both the DOS and Commerce Final Rules were unreviewable, the plaintiffs had not demonstrated the requisite likelihood of success on the merits, and therefore, a preliminary injunction was not merited. The panel remanded with instructions to dismiss.”

The states were trying to argue that only adding items to the prohibited list is judicially unreviewable, while taking items off it, at issue here, should be reviewable. The 9th Circuit panel disagreed. In other words, the lower court erred in allowing the states to successfully challenge the new rules that allow, rightly, for the free spread of these files. It’s worth remembering it was never about U.S. citizens having access to them, but the alleged threat of exporting the files to overseas persons, as that was, by prior ITAR theory, the equivalent of overseas arms proliferation. But the use of the Internet for such file spread makes restricting them to U.S. citizens more complicated.

This being the internet, attempts to suppress the spread of the files is impossible and trying to do so can only mean giving the government the power to harass specific parties from doing something everyone else can do and has been doing. While the company was not a party in this specific case, the legal history of attempts to punish people for spreading these files has been focused on one party, Defense Distributed.

Defense Distributed announced on their DEFCAD site that in light of this decision, U.S. law must be interpreted to “permit the limited and unlimited publication of our growing library of CAD, CAM, and other files. All CAD files are currently free to download. CAM data remains unconstitutionally controlled by the EAR [Commerce’s Export Administration Regulations], and is restricted to US persons with DEFCAD accounts.”

There is no way to actually stop the spread of such files, though that is not an argument the Court was relying on here. Such restrictions being on the books does give the government an extra tool with which to bash those it disapproves of.

The power to classify items as regulatable munitions is at “President’s discretion,” so the Biden administration could try to put certain computer files back on the list that puts them under ITAR authority or the Department of Commerce equivalent, but one wrinkle is that information or items already clearly in the public domain are supposed to be immune from that. Wilson at Defense Distributed is excited that with this week’s decision, a space is created to get more and more such files out that barn door while it’s open, which should limit the Biden administration’s powers to cram them back in later should it want to try.

As DEFCAD’s statement hinted, even under Commerce’s new rule, it’s not a complete free-for-all for gun-making files. Commerce still insists it can restrict software that “is ready for insertion into a computer numerically controlled machine tool, additive manufacturing equipment, or any other equipment that makes use of the ‘software’ or ‘technology’ to produce the firearm frame or receiver or complete firearm.”

But Defense Distributed believes simple CAD files, not to mention such things as blueprints or instructional videos which were arguably restrictable under the old ITAR rules, are now officially liberated thanks to the 9th Circuit’s decision yesterday.

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