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Here's a place to start: http://en.wikipedia.org/wiki/Strict_scrutiny http://en.wikipedia.org/wiki/Strict_scrutiny National security most likely qualifies as "

Here's a place to start: http://en.wikipedia.org/wiki/Strict_scrutiny http://en.wikipedia.org/wiki/Strict_scrutiny National security most likely qualifies as "compelling state interest" in general, but it's not the only thing the government needs to infringe on constitutional rights. The government also needs to prove that the infringement is narrow and specific. Even then, I wonder if the "compelling state interest" could be challenged on not being compelling enough. (I am definitely not a lawyer, just remembering a con law class I took and refreshing my memory with Wikipedia.)

andrewfong 13y ago
I'm a lawyer, although not one that regularly practices First Amendment law. That said, zachrose is right that strict scrutiny applies here. Usually, to restrict truthful speech based on the content of the speech, the government must show that (1) there is a compelling state interest and (2) that the government's restriction on speech is narrowly tailored. National security is pretty compelling, but it's unclear how prohibiting disclosure of the number of requests is narrowly tailored to that interest. Without knowing more details about the nature of the program, it's hard to say why the number matters. But if the NSA can't demonstrate how disclosing a specific number, as opposed to an approximate range, has a noticeable impact on national security, the law would likely not be in their favor.
- icambron 13y ago
  I guess I don't really understand "national security is compelling". National security, like basically everything else, is a matter of degree. There are presumably compelling and uncompelling national security risks. If the court is weighing some amount of speech restriction against some amount of national security risk, presumably the size of the risk matters? What are the governments burdens here? Can they merely assert there's a security issue here or do they have to prove it? Does it have to pass some kind of severity test in order to restrict speech? I'm genuinely curious what the case law says on this stuff.

andrewfong 13y ago

I'm a lawyer, although not one that regularly practices First Amendment law. That said, zachrose is right that strict scrutiny applies here. Usually, to restrict truthful speech based on the content of the speech, the government must show that (1) there is a compelling state interest and (2) that the government's restriction on speech is narrowly tailored. National security is pretty compelling, but it's unclear how prohibiting disclosure of the number of requests is narrowly tailored to that interest. Without knowing more details about the nature of the program, it's hard to say why the number matters. But if the NSA can't demonstrate how disclosing a specific number, as opposed to an approximate range, has a noticeable impact on national security, the law would likely not be in their favor.

icambron 13y ago
I guess I don't really understand "national security is compelling". National security, like basically everything else, is a matter of degree. There are presumably compelling and uncompelling national security risks. If the court is weighing some amount of speech restriction against some amount of national security risk, presumably the size of the risk matters? What are the governments burdens here? Can they merely assert there's a security issue here or do they have to prove it? Does it have to pass some kind of severity test in order to restrict speech? I'm genuinely curious what the case law says on this stuff.