DEFENSE DISTRIBUTED; SECOND AMENDMENT FOUNDATION, INCORPORATED, Plaintiffs - Appellants
UNITED STATES DEPARTMENT OF STATE; JOHN F. KERRY, In His Official Capacity as the Secretary of the Department of State; DIRECTORATE OF DEFENSE TRADE CONTROLS, Department of State Bureau of Political Military Affairs; KENNETH B. HANDELMAN, Individually and in His Official Capacity as the Deputy Assistant Secretary of State for Defense Trade Controls in the Bureau of Political-Military Affairs; C. EDWARD PEARTREE, Individually and in His Official Capacity as the Director of the Office of Defense Trade Controls Policy Division; SARAH J. HEIDEMA, Individually and in Her Official Capacity as the Division Chief, Regulatory and Multilateral Affairs, Office of Defense Trade Controls Policy; GLENN SMITH, Individually and in His Official Capacity as the Senior Advisor, Office of Defense Trade Controls, Defendants-Appellees
from the United States District Court for the Western
District of Texas
PETITION FOR REHEARING EN BANC
09/20/2016, 838 F.3d 451)
DAVIS, JONES, and GRAVES, Circuit Judges.
EUGENE DAVIS UNITED STATES CIRCUIT JUDGE
Court having been polled at the request of one of its
members, and a majority of the judges who are in regular
service and not disqualified not having voted in favor (Fed.
R. App. P. 35 and 5th Cir. R. 35), the Petition
for Rehearing En Banc is DENIED. In the en banc poll, five
judges voted in favor of rehearing (Judges Jones, Smith,
Clement, Owen and Elrod) and nine judges voted against
rehearing (Chief Judge Stewart and Judges Jolly, Dennis,
Prado, Southwick, Haynes, Graves, Higginson and Costa).
FOR THE COURT:
JENNIFER WALKER ELROD, Circuit Judge, joined by JONES, SMITH,
and CLEMENT, Circuit Judges, dissenting from the denial of
rehearing en banc.
panel opinion's flawed preliminary injunction analysis
permits perhaps the most egregious deprivation of First
Amendment rights possible: a content-based prior restraint.
Judge Jones's cogent panel dissent thoroughly explores
the flaws in the panel opinion. I write here to highlight
three errors that warrant en banc review. First, the
panel opinion fails to review the likelihood of success on
the merits-which ten of our sister circuits agree is an
essential inquiry in a First Amendment preliminary injunction
case. Second, the panel opinion accepts that a mere assertion
of a national security interest is a sufficient justification
for a prior restraint on speech. Third, the panel opinion
conducts a fundamentally flawed analysis of irreparable harm.
Accordingly, I respectfully dissent from the denial of en
banc review in this case.
restraints are "the most serious and least tolerable
infringement on First Amendment rights." Nebraska
Press Ass'n v. Stuart, 427 U.S. 539, 559 (1976). In
the context of a party seeking a preliminary injunction, we
have stressed the importance of determining the likelihood of
success on the merits-calling it "arguably the most
important factor." Tesfamichael v. Gonzalez,
411 F.3d 169, 176 (5th Cir. 2005). Accordingly, ten of our
sister circuits have held that the likelihood of success on
the merits is a crucial, indispensable inquiry in the First
Amendment context. See Sindicato Puertorriqueno de
Trabajadores v. Fortuno, 699 F.3d 1, 10 (1st Cir. 2012);
N.Y. Progress & Prot. PAC v. Walsh, 733 F.3d
483, 488 (2d Cir. 2013); Stilp v. Contino, 613 F.3d
405, 409 (3d Cir. 2010); WV Ass'n of Club Owners
& Fraternal Servs. v. Musgrave, 553 F.3d 292, 298
(4th Cir. 2009); Liberty Coins, LLC v. Goodman, 748
F.3d 682, 690 (6th Cir. 2014); ACLU of Illinois v.
Alvarez, 679 F.3d 583, 589-90 (7th Cir. 2012); Child
Evangelism Fellowship of Minn. v. Minneapolis Special Sch.
Dist. No. 1, 690 F.3d 996, 1000 (8th Cir. 2012);
Verlo v. Martinez, 820 F.3d 1113, 1126 (10th Cir.
2016); Scott v. Roberts, 612 F.3d 1279, 1297 (11th
Cir. 2010); Pursuing America's Greatness v. FEC,
831 F.3d 500, 511 (D.C. Cir. 2016). Strikingly, however, the
panel opinion entirely fails to address the likelihood of
success on the merits, and in so doing creates a circuit
split. This error alone merits rehearing en banc.
the panel opinion's failure to address the likelihood of
success on the merits infects its public interest analysis. A
court that ignores the merits of a constitutional claim
cannot meaningfully analyze the public interest, which, by
definition, favors the vigorous protection of First Amendment
rights. See Opulent Life Church v. City of Holly Springs,
Miss., 697 F.3d 279, 298 (5th Cir. 2012)
("[I]njunctions protecting First Amendment freedoms are
always in the public interest.") (citation omitted);
see also Gordon v. Holder, 721 F.3d 638, 653 (D.C.
Cir. 2013) ("[I]t may be assumed that the Constitution
is the ultimate expression of the public interest.").
The panel opinion's failure to address the likelihood of
success on the merits denies Defense Distributed a meaningful
review of the public interest factor.
panel opinion's public interest analysis is also flawed
because it relies on a mere assertion of a national security
interest. Defense Dist'd v. U.S. Dep't of
State, No. 15-50759, slip op. at 10 (5th Cir. 2016)
(noting that the Government "asserted a very
strong public interest in national defense and national
security." (emphasis added)). Certainly there is a
strong public interest in national security. But there is a
paramount public interest in the exercise of constitutional
rights, particularly those guaranteed by the First Amendment:
"Any system of prior restraints of expression comes to
this Court bearing a heavy presumption against its
constitutional validity. The Government thus carries a heavy
burden of showing justification for the imposition of such a
restraint." N.Y. Times Co. v. United States,
403 U.S. 713, 714 (1971) (citations omitted). To justify a
prior restraint, we have held that the Government must show
that the "expression sought to be restrained surely will
result in direct, immediate, and irreparable damage."
Bernard v. Gulf Oil Co., 619 F.2d 459, 473 (5th Cir.
1980) (en banc); see also N.Y. Times, 403
U.S. at 730 (Stewart, J., concurring). The Supreme Court has
articulated similar requirements: there must be a
"requisite degree of certainty [of danger] to justify
restraint, " there must be no "alternative
measures" available, and the restraint must
"effectively . . . operate to prevent the threatened
danger." Nebraska Press, 427 U.S. at 562, 565,
569-70. The Government contends that the gun designs at issue
could potentially threaten national security. However, this
speculation falls far short of the required showing under
Bernard and Nebraska Press, showing neither
the immediacy of the danger nor the necessity of the prior
restraint. 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.
panel opinion's flawed analysis in turn infects its
evaluation of irreparable harm. The panel opinion justifies
the prior restraint on speech because any harm to Defense
Distributed would be "temporary." But irreparable
harm occurs whenever a constitutional right is deprived, even
for a short period of time. Elrod v. Burns, 427 U.S.
347, 373 (1976) ("The loss of First Amendment freedoms,
for even minimal periods of time, unquestionably constitutes
irreparable injury."). Even if the panel opinion's
"temporary harm" theory were valid, the deprivation
here has been anything but short. Instead, as Judge
Jones's panel dissent notes, because of the lack of a
preliminary injunction, Defense Distributed has been
effectively muzzled for over three years. Defense
Dist'd, slip op. at 17 (Jones, J.,
been warned that the "word 'security' is a
broad, vague generality whose contours should not be invoked
to abrogate the fundamental law embodied in the First
Amendment." N.Y. Times, 403 U.S. at 719 (Black,
J., concurring). Unfortunately, that is exactly what the
panel opinion has ...