The Replicator and the First Amendment
58 Pages Posted: 14 Oct 2015 Last revised: 7 Sep 2017
Date Written: October 1, 2014
As 3D printing technology improves, the theoretical endpoint comes into view: a machine that, like the “replicators” of Star Trek, can produce anything the user asks for out of thin air from a digital blueprint. Real-life technology may never reach that endpoint, but our progress toward it has accelerated sharply over the past few years — sharply enough, indeed, for legal scholars to weigh in on the phenomenon’s disruptive potential in areas ranging from intellectual property to gun rights.
This paper is concerned with the First Amendment status of the digital blueprints. As of August 2014, it is the first law review article to address the intersection of 3D printing with free speech beyond the specific context of 3D-printed guns. I show that as “replicator” technologies pick up, the distribution of digital blueprints will begin to replace the distribution of goods as a central regulatory concern. This transition, in turn, will inspire First Amendment challenges to efforts by the government to restrain or penalize the distribution of the files. A handgun licensing law, for instance, might be said to violate the First Amendment prohibition against prior restraints if it were applied against a digital blueprint’s “informational” content.
Such arguments should fail, and fail badly, in most situations. Indeed they will have to, lest free speech become a wide Lochner-esque freedom to manufacture. Instead, I will argue that the “informational” appearance of a digital blueprint is constitutionally irrelevant, and that the First Amendment should not even come into play absent some extrinsic reason to think that the digital blueprint is being used for an expressive purpose. The presence of a digital blueprint in a fact pattern, in other words, should not in itself affect the First Amendment analysis either positively or negatively. I nonetheless express some skepticism, drawing on turn-of-the-century case law on software and recent case law on medical data, that the Supreme Court will maintain this attitude of equanimity with perfect consistency.
Keywords: First Amendment, 3D printing, software, technology, guns
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