Exporting the First Amendment
posted by Timothy Zick
One of the trans-border concerns I’ll address in my book, The Cosmopolitan First Amendment, relates to the exportation of First Amendment norms and standards. Generally speaking, provincialism and cosmopolitanism both aspire to facilitate the spread of First Amendment norms and standards — although, as I will explain in the book, they differ in important respects with regard to the preferred means of exportation.
In a broad sense, exportation can take many forms. For example, refusal to recognize foreign libel judgments may indirectly result in the exportation of American libel standards. Extraterritorial application of some U.S. laws may effectively export U.S. free speech principles to foreign countries. Voluntary, or court-ordered, compliance with First Amendment standards in cases where aliens’ expressive or religious liberties are affected abroad would also constitute a form of exportation. Conditional spending measures could prohibit American companies working abroad from assisting repressive foreign regimes. Federal legislation might commit the U.S., at least in principle, to facilitating and protecting religious and expressive liberties throughout the world. Exportation through legislation may be somewhat effective in terms of expanding the domain of First Amendment norms. These and other measures may result in expansion of the First Amendment’s actual domain, or at least signal an intent to facilitate expressive and religious liberties regardless of location. In truth, however, these measures are not likely to produce substantial exportation of First Amendment norms and standards.
Exportation is far more likely to occur through diplomatic and foreign affairs policies designed to facilitate expressive and religious liberties around the world. (I consider this exportation of ”First Amendment” norms, broadly speaking, in part because this is one of the primary goals of such policies. Of course, other nations are committed to similar norms and values.) These efforts include U.S.A.I.D. programs, participation in various trans-national processes, and foreign affairs initiatives. Of course, there is no guarantee that these or any similar efforts to export First Amendment norms will be successful. (In this regard, one might read Margaret Blanchard’s book, Exporting the First Amendment: The Press-Government Crusade of 1945-1952 (1986)). However, in the long run, they are likely to bear far more fruit than the legal means of exportation discussed above.
The book will discuss several forms of exportation-by-diplomacy. The State Department’s “21st Century Statecraft” initiative demonstrates some of the complexties and challenges associated with this means of exporting First Amendment norms. One aspect of this program entails facilitating access to counter-surveillance and other technologies that will make it more difficult for repressive foreign regimes to stifle public protest and social movements. Although this Internet freedom initiative has been frequently touted by Secretary of State Clinton, its particulars have not yet been fully specified. As the WikiLeaks episode suggests, the U.S. has not yet determined the extent to which its commitment to Internet freedom will be tempered or affected by national security concerns. Finally, as this recent op-ed observes, American and other technology companies have been involved in counter-productive endeavors such as providing software and other resources to repressive regimes — including Qaddafi’s government.
If this sort of statecraft is going to be part of American foreign policy, it will probably have to involve some collaboration and coordination between government and private industry. Google’s recent resistance of Chinese Internet repression shows that multinational corporations are likely to be important players in the realm of “21st Century Statecraft.” Ultimately, the extent to which the U.S. is able to export First Amendment norms will depend in part on its actual and perceived power and influence across the globe — a subject of intense interest and debate in the twenty-first century.
September 15, 2011 at 3:05 pm
Posted in: Cyber Civil Rights, First Amendment
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Responses (1)
A.J. Sutter - September 15, 2011 at 11:08 pm
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.
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.
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