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The is substantial precedent that the US constitution prevents the government from compelling speech, litigated all they way to supreme court. This isn't some s

The is substantial precedent that the US constitution prevents the government from compelling speech, litigated all they way to supreme court. This isn't some sovcit-level workaround, there is actual legal theory behind it. It is important to note that the more "low-effort" style of warrant canary, or simply posting a static page that says that you have not been served a warrant, is probably not safe. Taking the page down is possibly an action you can be legally prevented from doing. However, that's not what rsync.net is doing. They are specifically posting a new one every week, because no court or authority can compel them to post one if they don't want to under US law.

deleted 4y ago
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SAI_Peregrinus 4y ago
Then why does every food product have a "nutrition facts" label, mandated by the FDA, if said mandate is unconstitutional? Either some compelled speech is constitutional, or Nestle hasn't bothered to litgate it (strains credibility), or all the food manufacturers think that American consumers care enough about having the nutrition facts that they'd have a competitive disadvantage if they removed them (even less credible). Edit: My point is that "compelled speech" isn't the issue, it's "compelled false speech" vs "compelled silence", either of which infringes on the right to free speech in some way.
- tptacek 4y ago
  Further, if this actually gets litigated, it seems pretty likely that the DOJ will argue that the government isn't compelling "false" speech, so much as the canary's owners deliberately created a situation where compliance with a lawful compulsion to silence would require them to lie; that they more or less "banked" a lie, and then tried to pin that on the government when it was time to make the withdrawal. (That's not to say this argument, or any canary argument, would avail; who the hell knows, should be our watchwords in this matter.)
- thecrash 4y ago
  > why does every food product have a "nutrition facts" label, mandated by the FDA The FDA can't compel you to say anything you don't want to. But they can refuse to let you sell your product. The right to sell food isn't as strongly protected as the right to political expression.
tptacek 4y ago
The government compels speech like, all the time. Can you cite this substantial precedent you're referring to? The cancer warning label on my couch wants to have words.
- twiss 4y ago
  https://www.reuters.com/article/us-otc-speech/when-the-government-can-make-businesses-talk-idUSKBN17Q262 https://www.reuters.com/article/us-otc-speech/when-the-gover... says: > On Friday, the 9th U.S. Circuit Court of Appeals joined a slowly emerging consensus among the federal circuits, holding that governments have the right to mandate corporate speech “if the information in the disclosure is reasonably related to a substantial governmental interest and is purely factual.” The latter requirement does not seem to be held in the case of compelling rsync to post an updated warrant canary claiming not to have received a warrant if they have. Furthermore, in the case of cancer warnings, the actual law is phrased as: > No person in the course of doing business shall knowingly and intentionally expose any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual so, it's not so much compelled speech "out of the blue", rather it's a requirement of doing business. There are other ways the business can comply with the law, such as not including the chemical in the product. In the case of warrant canaries, I'd be surprised if there's a similar law requiring them to be posted to do business.

deleted 4y ago

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SAI_Peregrinus 4y ago

Then why does every food product have a "nutrition facts" label, mandated by the FDA, if said mandate is unconstitutional? Either some compelled speech is constitutional, or Nestle hasn't bothered to litgate it (strains credibility), or all the food manufacturers think that American consumers care enough about having the nutrition facts that they'd have a competitive disadvantage if they removed them (even less credible). Edit: My point is that "compelled speech" isn't the issue, it's "compelled false speech" vs "compelled silence", either of which infringes on the right to free speech in some way.

tptacek 4y ago
Further, if this actually gets litigated, it seems pretty likely that the DOJ will argue that the government isn't compelling "false" speech, so much as the canary's owners deliberately created a situation where compliance with a lawful compulsion to silence would require them to lie; that they more or less "banked" a lie, and then tried to pin that on the government when it was time to make the withdrawal. (That's not to say this argument, or any canary argument, would avail; who the hell knows, should be our watchwords in this matter.)
thecrash 4y ago
> why does every food product have a "nutrition facts" label, mandated by the FDA The FDA can't compel you to say anything you don't want to. But they can refuse to let you sell your product. The right to sell food isn't as strongly protected as the right to political expression.

tptacek 4y ago

The government compels speech like, all the time. Can you cite this substantial precedent you're referring to? The cancer warning label on my couch wants to have words.

twiss 4y ago
https://www.reuters.com/article/us-otc-speech/when-the-government-can-make-businesses-talk-idUSKBN17Q262 https://www.reuters.com/article/us-otc-speech/when-the-gover... says: > On Friday, the 9th U.S. Circuit Court of Appeals joined a slowly emerging consensus among the federal circuits, holding that governments have the right to mandate corporate speech “if the information in the disclosure is reasonably related to a substantial governmental interest and is purely factual.” The latter requirement does not seem to be held in the case of compelling rsync to post an updated warrant canary claiming not to have received a warrant if they have. Furthermore, in the case of cancer warnings, the actual law is phrased as: > No person in the course of doing business shall knowingly and intentionally expose any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual so, it's not so much compelled speech "out of the blue", rather it's a requirement of doing business. There are other ways the business can comply with the law, such as not including the chemical in the product. In the case of warrant canaries, I'd be surprised if there's a similar law requiring them to be posted to do business.