Well, that’s definitely not true. The government can suppress speech when it sends an emergency action alert to commandeer tv and radio stations during an emergency, for one example.
The fact is that the means employed make every bit of difference when it comes to whether or not the content based speech restriction is tailored as narrowly as possible to achieve a compelling government interest.
On the other hand, maybe it makes not difference to your feelings, which is fair.
Emergency announcements or orders have to be temporary and limited in scope. They also couldn't target specific channels on talk radio just because they have a made up emergency.
Meanwhile the emergency broadcast rules that were created in early tv and radio era definitely don't apply to social media, given that they are discretionary, asynchronous forms of communication, and there's no lack of bandwidth as there was in the early tv and radio era.
I'm obviously not saying the means never make a difference in any case. I'm talking about this case.
I'm saying that using minimal means does not make an unconstitutional action acceptable; you're pointing out that using excessive means can make a constitutional action unacceptable. That's a different situation and not really a reply to my comment or this case.
To make it more relevant, can you point to a single case where a court has ruled that a constitutionally limited action was permitted simply because the means were unintrusive?
A compelling government interest, as you said, could justify the action, but what is the compelling government interest here?
> To make it more relevant, can you point to a single case where a court has ruled that a constitutionally limited action was permitted simply because the means were unintrusive?
I think that's self-contradictory: if the court permitted it, then it did not cross the limits.
If you meant this more broadly, then we should understand that ALL government actions are constitutionally limited and the more an action infringes upon liberty, the more the action should be "narrowly tailored", but actions can still be permitted.
There’s actually a pretty regimented set of rules for the sort of sliding scale you’re talking about. Put succinctly, if the government wants to regulate against your fundamental rights, they have to have a really really good interest and their mechanism must be as narrowly tailored as possible. Less fundamental rights might be regulated against based on an interest that isn’t as strong, or a mechanism that isn’t as narrow, maybe one that is only connected to the interest by a “rational basis”, even if it wasn’t the intent that the legislature had.
Most people other than Rudy Giuliani call these ways of analyzing whether a law is constitutional strict scrutiny and rational basis scrutiny. For intermediate rights, the standard is (wait for it) intermediate scrutiny.
I am only scratching the surface of this subject but you are absolutely right to intuit that the linkage between the means and and the interest.
Ok. I’m glad you’re not saying that; I think it means we are coming at this similarly.
You can choose how compelling the interest is, but my take was that the government has a compelling interest in free and fair elections. Or in making sure a pandemic is handled well.
My hourly rate for research is higher than you probably expect! But your question is super interesting so I will try to answer it this evening. You might have a point about these situations being opposites (contrapositives? I forget) and I have to think about this more.
The fact is that the means employed make every bit of difference when it comes to whether or not the content based speech restriction is tailored as narrowly as possible to achieve a compelling government interest.
On the other hand, maybe it makes not difference to your feelings, which is fair.