> the gag order is categorically illegal - a law which abridges your freedom of speech. Surely that's gotta stand up in court? Or what good is the Constitution?
A lot of people have a misconception that the Constitution guarantees total, absolute freedom of speech, when it simply does not. The rather clichéd example would be not getting to shout 'Fire!' in a crowded theater.
There are better examples to be found in real life: it would be illegal to say or print something that had the very real possibility of inciting someone to commit violence (as in Planned Parenthood vs ACLA: the ACLA was a pro-life group that encouraged people to take violent action against reproductive health workers).
So I think your mistake is in assuming the first amendment is absolute. It isn't, and for very good reasons upheld by the courts for over a century.
Is a gag order in itself bad? Not always. Sometimes gag orders serve legitimate purposes: for example, to prevent prejudicial information in a trial such as a defendant's previous, unrelated convictions from becoming public.
But regardless, the idea that the first amendment means you get to "say what you like" with no exceptions is a fallacy.
I do think the parent is overstating the case a bit, but I also think you're looking at it backwards. The constitution guarantees you the right to free speech and then carefully circumscribes what the exceptions to that are (e.g. yelling fire in a crowded theater, libel, and others) and those exceptions have sharpened by the courts. But the courts are required by precedent to place a great deal of weight to free speech, and it's generally required that the government prove in these cases that the right to free speech hasn't been violated, or that it passes the strict scrutiny test [1], which is a high bar, and doubly so when it comes to free speech.
In other words, "you're allowed to say what you want" is the default. Thus, a "well, there are exceptions to free speech" counterargument carries the burden of articulating why this particular piece of speech qualifies for such an exception. It's true that many kinds of gag orders have been considered constitutional but many have also failed to past muster and been lifted by courts. I'm no expert, but I suspect the ones in question here likely don't qualify for the exceptions they're claiming to have, because the orders (and the laws that enable them) are very broad, can not be justified by a compelling government interest, and possibly other issues. Time (and the courts) will tell.
The point is: railing that this kind of gag order is an absurd violation of free speech isn't fallacious just because yelling "fire" in a crowded theater is not free speech. It actually is the expectation being expressed in the constitution.
the Constitution guarantees total, absolute freedom of speech
Actually, the Constitution does, it's the government (specifically, the courts) that decided to add a few restrictions, ex post facto.
Whether or not that was a good thing is debatable, but the language in the Constitution could not be clearer: "no laws" means no laws, as in, zero. Nada. Zilch.
That we failed to live up to that ideal as a society is on us, not on the Constitution itself.
Oxford English Dictionary definition of Freedom: "The power or right to act, speak, or think as one wants."
Webster's American Dictionary definition of Freedom: "Unrestricted use".
Thus the dictionary definition would agree with the definition of "Freedom of speech" being absolute. The legal definition may disagree, however, my argument to that would follow:
Article 6, Clause 2 of the Constitution: "This Constitution, and the Laws of the United States which shall be made in pursuance thereof... shall be the supreme law of the land." Which loosely translated means "This Constitution and any laws which support this Constitution shall take precedence over everything else." Consequently, while the "Yelling Fire! in a theatre law," which may have been upheld by the Supreme Court, and which are probably more for the good than bad, and certainly protects more people than it harms, is actually an illegal law under the Constitution as it seeks to restrict your first amendment rights - which is quite contrary to the Constitution.
The wording is explicit. If the wording is not permissive enough for the government and legal system to cope with, then an amendment must be proposed and ratified. There are no amendments to the constitution that say "guarantees the freedom of speech, except where we can convince the Supreme Court to pass a law that restricts that in our favor." The Constitution is quite clear and explicit - "Congress shall make no law" so any law that has passed that serves to restrict your Constitutional rights are illegal in the eyes of the Constitution.
Thus your freedom of speech, in the eyes of the Constitution is absolute. It is only an illegal law, which agreed, made in the best interest of the people, in violation of the Constitution that restricts those First Amendment rights.
So what takes precedence? The Constitution or the law? What happens when they conflict? Well the Constitution covers that... "no law shall be passed" which conflicts with the Constitution. So the question becomes what is more powerful, the Constitution or the Supreme Court? I think that can only be answered by the people.
Why am I, as a non-American and non-resident of the United States, debating in defense of your Constitional rights and you as an American (is that a fair assumption?) are debating against it? That seems a little topsy turvy, no?
They are not, no where in the constitution is that stated.
To Quote Jefferson:
"to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy."
No part of the Constitution expressly authorizes judicial review, nor does the constitution need "interpreted" it was written in plain language and the words are very clear
Lawyers and Judges have supplanted their desires for expediency instead of going to correct and harder path of amendment.
Take for example the 18th amendments, in order for the federal government to ban alcohol a constitutional amendment was required because the government lack the constitutional power to regulate any substance, fast forward about 40 years, and all of the sudden the constitution has been "interpreted" to allow the government to ban any substance it wants at any time it so desires.
No no, the constitution does not interpretation, it needs protection, it needs to be upheld, it needs a court that will defend it, not "interpret" it like it was some dead language that only those chosen few can possibly understand
While seemingly a sensible limitation to free speech, the "shouting fire" line was coined to justify prosecuting a man who was protesting the draft. (This man argued that the draft was a form of involuntary servitude. I think he had a solid point.)
In a nutshell, it was argued that in this case the political speech represented a "clear and present danger" to national security.
Never concede to them anything. Any slack you give them, they will use to hang you.
> This man argued that the draft was a form of involuntary servitude. I think he had a solid point.
In a modern context, absolutely; most laws and treaties banning unfree labour specifically exempt military service, which is considered unfree labour by just about all authorities on the matter.
How much easier it would be if we could just trust that people use their own judgement to ignore nonsensical/potentially harmful things they hear (like is currently the case with advertisement).
A lot of people have a misconception that the Constitution guarantees total, absolute freedom of speech, when it simply does not. The rather clichéd example would be not getting to shout 'Fire!' in a crowded theater.
There are better examples to be found in real life: it would be illegal to say or print something that had the very real possibility of inciting someone to commit violence (as in Planned Parenthood vs ACLA: the ACLA was a pro-life group that encouraged people to take violent action against reproductive health workers).
So I think your mistake is in assuming the first amendment is absolute. It isn't, and for very good reasons upheld by the courts for over a century.
Is a gag order in itself bad? Not always. Sometimes gag orders serve legitimate purposes: for example, to prevent prejudicial information in a trial such as a defendant's previous, unrelated convictions from becoming public.
But regardless, the idea that the first amendment means you get to "say what you like" with no exceptions is a fallacy.