I’m puzzled by your discussion of pretext. It presumes that the administration has offered a concern about national security that is nothing more than a pretext for suppressing speech in various forms. As I understand the EOs, however, the administration is claiming that the speech itself is the national security threat. And they insist that the courts must defer to the administration on national security issues so the courts have no authority to review its determination that the speech is a threat that must be suppressed. It is attempting to circumvent the First Amendment altogether.
Yes, I agree that's what the government is trying to do. It's seeking to take advantage of the deference courts traditionally give to the executive with respect to national security, which can sometimes seem like an absolute nonjusticiability doctrine. I didn't spend as much time in this post on the First Amendment analysis because the government had relatively little to say about that. The district court decision in the Perkins matter, however, is based to a greater extent on the First Amendment, which is not surprising.
I’m puzzled by your discussion of pretext. It presumes that the administration has offered a concern about national security that is nothing more than a pretext for suppressing speech in various forms. As I understand the EOs, however, the administration is claiming that the speech itself is the national security threat. And they insist that the courts must defer to the administration on national security issues so the courts have no authority to review its determination that the speech is a threat that must be suppressed. It is attempting to circumvent the First Amendment altogether.
Yes, I agree that's what the government is trying to do. It's seeking to take advantage of the deference courts traditionally give to the executive with respect to national security, which can sometimes seem like an absolute nonjusticiability doctrine. I didn't spend as much time in this post on the First Amendment analysis because the government had relatively little to say about that. The district court decision in the Perkins matter, however, is based to a greater extent on the First Amendment, which is not surprising.
I look forward to everything you write. Smart, snarky, understandable, and persuasive. Keep up the good fight.
Thanks - much appreciated!