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> The problem with this analysis is that First Amendment rights were already successfully infringed with the gag order that necessitated the canary, which itsel
by elcritch 4y ago
> The problem with this analysis is that First Amendment rights were already successfully infringed with the gag order that necessitated the canary, which itself has to meet the (maximal) strict scrutiny standard
Has the supreme court actually ruled on the constitutionality of gag orders? Until then it's not completely settled that it's despite rulings in lower courts.
- tptacek 4y agoThese specifically, not that I know of. But gag orders in general? Nebraska Press v. Stuart, 3 part test: harm to the person being gagged, least restrictive means, and effectiveness of the order. That was in a press case, where the burden is much higher on the government than in these cases. Specific gag orders can and have failed in appeals! The problem with this argument as it pertains to warrant canaries is that defeating the gag order also defeats the purpose of the warrant canary. The question we're begging here is: if the gag order survives strict scrutiny, why won't the order to keep the canary up?