Court Says AECA, ITAR Licensing Requirements for Technical Data Don't Violate Free Speech
A federal court in Kentucky found that Arms Export Control Act and International Traffic in Arms Regulations licensing requirements for technical data don't violate the First Amendment as a restriction on free speech. Judge David Hale of the U.S. District Court for the Western District of Kentucky said the licensing requirements "advance important government interests unrelated to the suppression of free speech" and don't burden "substantially more speech than necessary to further those interests" (United States v. Pascoe, W.D. Ky. # 3:22-88).
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The First Amendment challenge had been included in defense contractor Quadrant Mechanics' motion to dismiss the case, brought by the U.S. against the company and several of its employees for allegedly violating export controls. Quadrant was accused of exporting controlled technical data to a Chinese company without a license in violation of the ITAR (see 2407150060).
Hale ruled the First Amendment claims should be subject to "intermediate scrutiny" from the court, because the licensing requirements are "content-neutral" in that they don't have a "content-based purpose or justification" -- the AECA bars the export without a license of items on the U.S. Munitions List "without regard to content or viewpoint," he said. To clear intermediate scrutiny, the government had to show the free speech infringement advances a proper government purpose in a way that's not more restrictive than needed. Hale said the AECA and ITAR clear this hurdle.
The "overriding purpose of the licensing requirements is to prevent for reasons of national security and foreign policy the unauthorized export of military technology," Hale said, which is "without question a vitally important interest." The licensing requirements also don't burden substantially more speech than needed, since the "technical data subject to the licensing requirements is already narrowly defined to include only information 'required' for, and 'directly related' to, defense articles," the judge said.
The measures also don't give the government "substantial power to discriminate based on the content or viewpoint of speech by suppressing disfavored speech or disliked speakers," as claimed by Quadrant, the court held. The judge said there are sufficient standards in place to guide the reviewing official's decision and render it subject to "effective judicial review." For instance, the AECA requires all licensing decisions to take a host of factors into account, including whether the exports would "aid in the development of weapons of mass destruction." The regulations provide "specific delineated criteria," the court said.
Hale rejected Quadrant's claim that the laws "facially" violate the First Amendment for being overbroad. The regulatory regime uses "several safeguards to prevent the licensing requirements from reaching 'a substantial number of impermissible applications,'" which would ordinarily make it overbroad, the court said.
And the judge declined to rule on claims that the licensing requirements violate the Fifth Amendment because they're "unconstitutionally vague." Hale said the Fifth Amendment challenge is premature, because he first must review evidence that will be submitted at trial, including evidence of whether the defendants knew they were in violation of the AECA and ITAR when they sent weapons schematics to China.