Thursday, January 9, 2014
Anna Su, Harvard Law School, has published Speech Beyond Borders: Extraterritoriality and the First Amendment: Does the First Amendment follow the flag?
On the one hand, the Supreme Court’s 2008 decision in Boumediene v. Bush categorically rejected the claim that constitutional rights do not apply at all to governmental actions taken against aliens located abroad, it also made the application of such rights, the First Amendment presumably included, contingent on “objective factors and practical concerns.” In addition, as Boumediene affirmed previous decisions, it also extended its functional test to cover even U.S. citizens, leaving them in a situation where they might also be without any constitutional recourse. The import and application of the decision outside the habeas context therefore remains unclear. But on the other hand, with regard to the First Amendment in particular, such ambiguity is replaced with tension. In the recent case of USAID v. Alliance for Open Society, although the fact that the speech was going to be uttered abroad was not mentioned in the decision, this factor was raised in several instances in the lower courts, and even in the oral arguments before the Supreme Court. An implication is that free speech rights, at least by U.S. registered entities or U.S. citizens, already exist abroad.
This Article resolves this doctrinal ambiguity and argues that the First Amendment covers speech made beyond U.S. borders and should be so judicially recognized. It situates existing First Amendment precedents within the broader framework set by decisions pertaining to the Constitution’s extraterritorial application. In particular, it extends First Amendment coverage to both citizen and alien speech, in cases where either speech have been subject to government regulation outside traditional national borders. The two conceptions of the First Amendment, either as a right that accrues to the individual or as a structural limitation against the government support the interpretation of making it available to both citizens and aliens. Recognizing the extraterritorial First Amendment, however, is only the beginning. What are the implications of such recognition? In many instances, an extraterritorial speech right is more than likely to go against legitimate foreign policy interests as crafted by the political branches of government as well as international law since First Amendment jurisprudence is less restrictive than global standards on freedom of expression. In the last part of the paper, it looks at an area where this claim would have the greatest impact: that of government speech abroad.
The full text is not available from SSRN.