Three D Printing and the Press Clause

Jasper L. Tran, George Mason University, is publishing Press Clause and 3D Printer in 14 Northwestern Journal of Technology and Intellectual Property (2015). Here is the abstract.

Printing, or 2D printing, is to reproduce texts and images from an original template onto papers using a printing press. The law protects 2D printing through copyright, and the First Amendment’s freedom of speech and of the press: “Congress shall make no law…abridging the freedom of speech, or of the press.”

3D printing simply adds another dimension to 2D printing. That is, 3D printing essentially stacks multiple layers of 2D printing on top of one another to reproduce a three-dimensional object following an electronic blueprint called “Computer-Aided Design file” (or “CAD file”). Like Star Trek’s Replicator, current 3D printers can print in materials like plastic, metal, ceramic, cement, wood, food, and human cells. What once was a sci-fi concept is commercially available for as low as $600.

Interestingly, the Framers used the phrase “the press” rather than “the report” in the First Amendment’s Press Clause — judges and scholars have argued that the “freedom…of the press” does not protect the press as an industry, but rather protects the use of the printing press and its modern equivalents as a technology. Furthermore, during the Framing era, the Framers understood the printing press, as a technological innovation, and existing rights as being adaptable to technological innovations. Perhaps the Framers intentionally used the phrase “the press” for new technologies unknown to the Framers, which include 3D printer — the modern equivalent of the printing press.

Courts have traditionally applied freedom of the press as the freedom to communicate. However, 3D printing has transformed how we had traditionally understood “printing”: printing now includes not only disseminating ideas, but also manufacturing objects. If the “freedom…of the press” expansively applies to 3D printing, each individual has an implied right to manufacture objects through 3D printing without governmental interference — i.e., a constitutional right to 3D print.

The interesting question becomes how sweeping this constitutional manufacturing right is. An immediate implication of the Press Clause’s manufacturing right is that the government cannot regulate 3D printing, or else the government violates the U.S. Constitution. But does the Press Clause applies to 3D printing technology overall (i.e., anything related to 3D printing as a manufacturing technology), to only the 3D printing activity (i.e., 3D printing’s process, but not products) or to only the 3D printer (i.e., anything involving the 3D printer’s use)? The answer could affect the ongoing debate in Congress about how to regulate 3D-printed guns, and end in no regulation of 3D printing whatsoever.

Download the essay from SSRN at the link.