Wednesday, July 21, 2010
This Article examines the relationship between territorial borders and First Amendment speech, press, and associational liberties. It posits that we have not one but three First Amendments - the intraterritorial, which protects expressive liberties within the U.S. and its territories; the territorial, which governs the cross-border exercise of these liberties; and the extraterritorial, which concerns both efforts to export First Amendment norms abroad and the application of First Amendment limitations outside U.S. borders. The Article focuses on the First Amendment’s territorial and extraterritorial dimensions. The path of the territorial First Amendment has been one of steady liberalization, mostly owing to legislative and executive policymaking but with some assistance from courts. During the past several decades, many immigration, travel, and trade laws and regulations have been substantially amended or repealed. As a result, cross-border information flow is less affected by explicit ideological concerns and borders are much softer in terms of the materials allowed to enter or exit the U.S. than during past eras. Social and political forces such as globalization, internationalism, and digitization have also contributed substantially to the ability of speech and associations to transcend territorial borders. Although this de-territorialization poses challenges to U.S. security and sovereignty, on balance it ought to be embraced owing to the expressive, political, and economic benefits it produces. With regard to the First Amendment’s extraterritorial dimension, legal, social, and political forces will increasingly place the First Amendment in direct contact and conflict with foreign speech regimes. Like other countries, the U.S. will have to navigate the tension between protecting its citizens’ interests in a globalized world and displacing foreign speech regimes through rights imperialism. The best opportunities for expanding the First Amendment’s domain of influence are likely to arise from diplomatic, funding, and technological policymaking. As it seeks to expand the influence of First Amendment principles abroad, the U.S. will also have to defend First Amendment exceptionalism at home from transnational and international influences. Finally, whether and if so to what extent the First Amendment follows the flag beyond U.S. borders remains an open question. Although support for expanding the Constitution’s territorial domain exists, there are substantial jurisprudential and theoretical obstacles to expansion of the First Amendment’s regulatory domain. Among other things, we lack a convincing justification for extending First Amendment concerns across and even beyond our borders.
Download the article from SSRN at the link.