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The Supreme Court has ruled that compelled speech (forcing someone to say something) is almost always a clear cut violation of the first amendment. There is no

by dannyw 4y ago

The Supreme Court has ruled that compelled speech (forcing someone to say something) is almost always a clear cut violation of the first amendment. There is no known case of US charging someone over a warrant canary. There have been plenty of warrant canaries that have ceased to be updated - e.g. Reddit, and more recently, Storj.

funOtter 4y ago
Cases where compelled speech has been forced by the courts: 1. Forcing registered sex offenders to alert people in their neighborhood 2. Correcting misstatements
- bombcar 4y ago
  For #1 you can do tons of things as condition for “early release” including warrantless searches so I suspect it’s related to that.
- jkaplowitz 4y ago
  So not yet compelling a lie.
- phpisthebest 4y ago
  Where in the US has number 1 been done? I am not aware of any places where the offender is required to alert people. Most commonly they need only to report to the local government/police who then may (and may be required) to publish that info. Often that is also often a condition of probation, meaning they are still under the authority of the courts and are still being "punished" by the system in leiu of prison. This is seen as the individual "giving up" some of their rights either by committing the offense or agreeing to the terms of probation instead of prison. This would also apply to #2. Neither one of those justification for infringement of the 1st amendment would apply in the cases of an NSL which are already on very very shaky legal ground and gag orders on them have been ruled constitutional in the past, currently they are only constitutional because a person getting an NSL now as the ability to appeal the NSL to a federal court, something that was previously missing
- devman0 4y ago
  Forcing factual speech (such as disclosures, warnings, product information, truth-in-lending, etc) is a lot different than forcing someone to say something that isn't true.
- YetAnotherNick 4y ago
  Could you refer the case?
- tptacek 4y ago
  The better example here is warning labels. Presumably, part of the reasons warning labels are easily compelled by the government is that they involve commercial speech, which receives a lower degree of 1A scrutiny. But then, most warrant canaries fall into the same bucket; they're basically just an inverted warning label.
- LarryMullins 4y ago
  Are there any known examples of the US Government legally being able to compel a lie?
  - Karellen 4y ago
    For people who have become involved with national security issues, aren't they often required to deny being involved with national security issues if asked? Would that count?
    - LarryMullins 4y ago
      No I don't think it does. The paperwork they sign when they get their security clearances put those people in a special circumstance. American journalists, not having security clearances, are allowed to spill the beans on national secrets.
jcranmer 4y ago
This is a colorable argument, but I think it's ultimately a pretty poor argument: First, freedom from compelled speech is not an inherently stronger (or weaker) freedom than freedom of speech. If the government can prevent you from saying something, then it can almost certainly prevent you from saying it by not not saying it. Second, national security is one of the most powerful legal trump cards in practice. The government saying that something is necessary for national security will be treated as fact by the court, no matter how much evidence there is to the contrary. Third, the purpose of freedom of speech is to protect freedom of expression. Speech that isn't expressive in nature has a much lower bar to clear for the government to be able to restrict it. Warrant canaries strike me as essentially commercial speech, which the government has pretty wide latitude to regulate.
- phpisthebest 4y ago
  >>The government saying that something is necessary for national security will be treated as fact by the court, no matter how much evidence there is to the contrary. Citation please >> Speech that isn't expressive in nature has a much lower bar to clear for the government to be able to restrict it. Warrant canaries strike me as essentially commercial speech, which the government has pretty wide latitude to regulate. This case law around NSL have not been vary favorable for the government, Appeals courts have struck down the gag order provisions of the laws in the place, and are poised to do so again should a case come before them. The current make up the Supreme Court also leads me to believe they would not look favorably on Gag orders, though they would on the larger issue of National Security
  - tptacek 4y ago
    This is a circular argument. If the gag orders in question are struck, the canary doesn't do anything: you can just tell people you were served with the court order. But if the canary matters, that means we're dealing with a nondisclosure order that did, at least for the moment, survive strict scrutiny. Since there isn't a legal concept of "super strict scrutiny", that leaves the question of why people believe the canary will fare any better than the objection to the gag order.
tzs 4y ago
That would apply (probably) if the government put you under a gag order and ordered you to keep updating your warrant canary. But what if they just put you under a gag order, and then when you stop updating the warrant canary they charge you with violating the gag order? Would that still fall under the compelled speech cases?

by dannyw 4y ago

funOtter 4y ago

Cases where compelled speech has been forced by the courts: 1. Forcing registered sex offenders to alert people in their neighborhood 2. Correcting misstatements

bombcar 4y ago
For #1 you can do tons of things as condition for “early release” including warrantless searches so I suspect it’s related to that.
jkaplowitz 4y ago
So not yet compelling a lie.
phpisthebest 4y ago
Where in the US has number 1 been done? I am not aware of any places where the offender is required to alert people. Most commonly they need only to report to the local government/police who then may (and may be required) to publish that info. Often that is also often a condition of probation, meaning they are still under the authority of the courts and are still being "punished" by the system in leiu of prison. This is seen as the individual "giving up" some of their rights either by committing the offense or agreeing to the terms of probation instead of prison. This would also apply to #2. Neither one of those justification for infringement of the 1st amendment would apply in the cases of an NSL which are already on very very shaky legal ground and gag orders on them have been ruled constitutional in the past, currently they are only constitutional because a person getting an NSL now as the ability to appeal the NSL to a federal court, something that was previously missing
devman0 4y ago
Forcing factual speech (such as disclosures, warnings, product information, truth-in-lending, etc) is a lot different than forcing someone to say something that isn't true.
YetAnotherNick 4y ago
Could you refer the case?
tptacek 4y ago
The better example here is warning labels. Presumably, part of the reasons warning labels are easily compelled by the government is that they involve commercial speech, which receives a lower degree of 1A scrutiny. But then, most warrant canaries fall into the same bucket; they're basically just an inverted warning label.
LarryMullins 4y ago
Are there any known examples of the US Government legally being able to compel a lie?
- Karellen 4y ago
  For people who have become involved with national security issues, aren't they often required to deny being involved with national security issues if asked? Would that count?
  - LarryMullins 4y ago
    No I don't think it does. The paperwork they sign when they get their security clearances put those people in a special circumstance. American journalists, not having security clearances, are allowed to spill the beans on national secrets.

jcranmer 4y ago

This is a colorable argument, but I think it's ultimately a pretty poor argument: First, freedom from compelled speech is not an inherently stronger (or weaker) freedom than freedom of speech. If the government can prevent you from saying something, then it can almost certainly prevent you from saying it by not not saying it. Second, national security is one of the most powerful legal trump cards in practice. The government saying that something is necessary for national security will be treated as fact by the court, no matter how much evidence there is to the contrary. Third, the purpose of freedom of speech is to protect freedom of expression. Speech that isn't expressive in nature has a much lower bar to clear for the government to be able to restrict it. Warrant canaries strike me as essentially commercial speech, which the government has pretty wide latitude to regulate.

phpisthebest 4y ago
>>The government saying that something is necessary for national security will be treated as fact by the court, no matter how much evidence there is to the contrary. Citation please >> Speech that isn't expressive in nature has a much lower bar to clear for the government to be able to restrict it. Warrant canaries strike me as essentially commercial speech, which the government has pretty wide latitude to regulate. This case law around NSL have not been vary favorable for the government, Appeals courts have struck down the gag order provisions of the laws in the place, and are poised to do so again should a case come before them. The current make up the Supreme Court also leads me to believe they would not look favorably on Gag orders, though they would on the larger issue of National Security
- tptacek 4y ago
  This is a circular argument. If the gag orders in question are struck, the canary doesn't do anything: you can just tell people you were served with the court order. But if the canary matters, that means we're dealing with a nondisclosure order that did, at least for the moment, survive strict scrutiny. Since there isn't a legal concept of "super strict scrutiny", that leaves the question of why people believe the canary will fare any better than the objection to the gag order.

tzs 4y ago

That would apply (probably) if the government put you under a gag order and ordered you to keep updating your warrant canary. But what if they just put you under a gag order, and then when you stop updating the warrant canary they charge you with violating the gag order? Would that still fall under the compelled speech cases?