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Exporting the First Amendment

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  1. A.J. Sutter says:

    Sorry to harp on this distinction, but your recent comment to your previous post didn’t clear this up: The non-recognition of foreign judgments has a direct effect only on US soil. It’s more like an import ban than an exportation. Other countries remain free to recognize the judgment or not.

    This is also why I don’t think it’s imperialist — any more than Japan’s import restrictions on foreign rice are imperialist. If you’re going to use a trade analogy, protectionist seems more apt.

    It might help to distinguish some cases; let’s assume R is a “repressive” country that doesn’t share First Amendment norms.

    (a) R national sues US national in R for defamation in R; wins; tries to enforce judgment in US; US court declines.

    (b) R national sues US national in US for defamation in R; loses, because US Court applies 1st Amendment standards.

    (c) State Department cuts off aid to any country that tries to restrict speech of US national or company within its borders.
    – [variant (c'): Congress directs State to do so.]

    (d) State Department reg prohibits US companies abroad from supporting Socialist candidates in any country.
    –[variant (d'): Congress passes a law prohibiting companies from doing so.]

    (e) State Department refuses to give aid to any country that has a Socialist party.
    –[variant (e'): Congress prohibits State from giving aid to such countries.]

    (f) State Department gives aid to dissidents in R who violate R laws limiting speech.
    –[variant (f'): Congress directs State to do so.]

    Case (a), as I’ve argued, is protectionist, not “imperialist” or an instance of de jure “exporting” of norms. Calling it “provincial” seems easy to understand. A more cosmopolitan approach, i.e., recognizing the foreign judgment, could be construed as “importation” of restrictions on speech — the opposite of facilitating the spread of First Amendment norms and standards.

    Case (b), on the other hand, does seem a plausible instance of de jure exportation of the 1st Amendment to apply to behavior in a foreign country. Whether or not this is “imperialist”, and whether it falls within “cosmopolitan” or “provincial,” are less clear to me — is an expat who only eats at MacDonalds when in Paris “cosmopolitan,” or “provincial”?

    Cases (c)/(c’) might be de facto norm exportation, depending on how desperately the country needs the aid. I can see how you could call this cosmopolitan; “imperialism” is a matter of taste. (Distinction between (c) and (c’) is possibly that one is de facto and the other is de lege, though both might be de lege, depending on how State does things. This is also true in some other examples below.)

    Cases (d)/(d’) on the other hand, seem harder to classify. They seem to limit the 1st Amendment rights of US companies, so it isn’t exportation of free speech norms. It could be cosmopolitan if that means simply raising a cross-border 1st Amendment issue — but again, it’s a restriction of rights, not an extension of them. Whether or not it’s imperialist is more ambiguous: seems neutral, since it doesn’t prevent Socialists from winning. Maybe you would argue that under a cosmopolitan interpretation of the 1st Amendment, cases (d)/(d’) should be deemed unconstitutional.

    Cases (e)/(e’) are also hard to classify. In the abstract, they seem like provincial limitations on spending. They don’t export anything — they are conditional refusals to trade. If they result in a country’s support getting cut off, then perhaps there’s a de facto exportation of some sort of ideological norm (political or economic); but not of the 1st Amendment, since (e) and (e’) punish certain types of speech. Maybe you would argue that under a cosmopolitan interpretation of the 1st Amendment, aid decisions should not be based on the presence or absence of certain types of political organizations in a potential aid recipient; good luck with that.

    Cases (f)/(f’) seem the most plausible candidates for the “imperialism” moniker out of the examples I mention (though as history teaches, there are matters of degree here — e.g., financial aid vs. the CIA setting up a dissident newspaper directly). The cases could also be construed, I suppose, as “exporting” a free speech norm. I don’t know whether they necessarily count as “cosmopolitanism” — did our pre-9/11 support for the Taliban in Afghanistan count as cosmopolitan support of free speech?

    I think these examples illustrate that some of your metaphors (provincial, cosmopolitan, exporting, imperialism) might be construed as separate dimensions, albeit not always orthogonal ones. Moreover, sometimes some norm is, say, being exported, but it’s not necessarily a free speech norm. This dimensionality wasn’t evident (to me, at least) from your posts. Instead, you seemed to be using the metaphors like broad brushes on a flat canvas. Maybe your book preserves some of the subtleties; this is why I was hoping for more concrete examples.