Democracy survived the Supreme Court upholding internment of US citizens of Japanese descent, and it will survive this.
Some kinds of gag orders are undisputably Constitutional. It's not like in 1790 the government couldn't do anything about someone tipping off a suspect in a criminal investigation. The Sedition Act, banning criticism of the government, was passed during the presidency of a Framer in 1789.[1] And Near v. Minnesota noted that national security issues could justify prior restraint even while striking down a restriction as violating the First Amendment. That was in 1931.
That said hopefully the government loses this one, and there is good reason for them to lose.[2] The bar for Constitutional prior restraints is very high.
[1] The Sedition Act also demonstrates how nobody ever agreed on the definition of "freedom of speech." The Federalist argument in support of the Act relied on the narrow English definition of the concept.
US democracy also survived the rise of the KKK, courtesy of very strong free speech and free press protections. Had the US lacked such, it's entirely plausible that the KKK could have become the US version of the National Socialists in Germany. I think a lot of people are ignorant of just threatening the KKK was for a few decades. The ability to freely argue ideas, and for the right ideas to win, is what made it possible to fundamentally neuter the KKK (such that now they're a meaningless, powerless, small group with no real impact on national politics). All of that was accomplished without having to fight a military conflict with the KKK / destroy them with force.
It seems to me that the KKK had about three stretches of considerable power: in the south during Reconstruction; in the south with some considerable influence in Pennsylvania, the Midwest, and as far as Colorado, during the 1920s; and again mostly in the south in the 1950s and 1960s.
After Reconstruction, the KKK essentially won--no black votes, no black officials. In the 1920s, I think it reduced itself to absurdity, with a high official jailed under the Mann Act. And law enforcement, notably the FBI, had a good deal to do with the end of its 1960s power.
A more recent example is 'Free Speech zones', meaning that you are free to say whatever you like, but not where people can hear you. It seems to me that "You can't assemble here" runs directly counter to "No law abridging the right to peaceably assemble", but SCOTUS trumps this foreigner's opinion :)
Free speech zones are more about how to let different people use public property than speech control. They don't apply to private property. Essentially they are set up to contain protestors who are trying to disrupt major events.
I don't think it's a violation of people's rights to say, no, you can't have a protest that intends to shout down another political speech or convention, at least when it is staged in very close proximity.
I do think we should be pretty dam weary of them, but I don't think they are per se unconstitutional.
I would argue that they are desperately unconstitutional. The right to say what you want in private is nowhere near as important as it is to say it in public.
Much as the Supreme Court has determined that you (and police) have no reasonable expectation of privacy in a public space, there should be every reasonable expectation of Constitutional guarantees in ALL public space. Extremely scoped exceptions are arguable (as the much quoted "yelling "fire"" in a movie theater).
The point of free-speech zones is to remove the annoyance of having to hear freely expressed opinions that counter your own, and is usually granted to those in power (specifically politicians). This is the opposite of right. In a public space, you should have no expectation of freedom FROM speech.
The idea that it's "all over for democracy in the US" is usually undergirded on a belief that civil rights are being chipped away over time. That belief is ignorant of history.
Matthew Lyon, a Republican Congressman, was prosecuted, convicted, and imprisoned by the Adams government for publishing letters critical of the administration. See also, the stories of Thomas Cooper, James Callender. If Obama acted like the founding fathers, half of Fox News' anchors would be in jail!
The history of the republic has been a back-and-forth between the civil rights and security. Heck, the impetus for the Constitutional Convention was the failure of the federal government to put down an insurgency in Massachusetts!
Objectively, Americans have more civil liberties today than they were when the ink on the Constitution was still wet. That was before expansive readings of the First Amendment. That was before broad readings of what "due process" requires. Was a time when the Bill of Rights didn't even apply to the states!
The idea that NSL's are a signal of the end of the republic is ludicrous and ahistorical.
You have a good point here, but I consider this perpetual struggle a matter of liberty vs. power, rather than security. True security actually encourages personal freedoms to an extent.
The government has apologized, and society widely recognizes that as something that was wrong, and shouldn't be repeated. I would suggest that Democracy has survived in that sense.
Some kinds of gag orders are undisputably Constitutional. It's not like in 1790 the government couldn't do anything about someone tipping off a suspect in a criminal investigation. The Sedition Act, banning criticism of the government, was passed during the presidency of a Framer in 1789.[1] And Near v. Minnesota noted that national security issues could justify prior restraint even while striking down a restriction as violating the First Amendment. That was in 1931.
That said hopefully the government loses this one, and there is good reason for them to lose.[2] The bar for Constitutional prior restraints is very high.
[1] The Sedition Act also demonstrates how nobody ever agreed on the definition of "freedom of speech." The Federalist argument in support of the Act relied on the narrow English definition of the concept.
[2] This article in the Yale Law Journal has some good coverage of the background to this litigation: http://www.yalelawjournal.org/forum/warrant-canaries-and-dis....