First Amendment Cosmopolitanism
posted by Timothy Zick
In my last post, I posited the existence of three distinct First Amendments and focused on a number of issues relating to the First Amendment’s trans-border dimension. In this post, I will sketch a conception or orientation regarding the First Amendment that I contend ought to be applied in considering and resolving those and related issues. Although my theory or conception may have certain local, domestic implications it is applicable primarily to and in the trans-border dimension.
My book will advance a First Amendment conception that I call “cosmopolitan.” I use this term recognizing the sometimes misleading and distracting nature of labels. In this case, the label is descriptively and normatively pertinent. To be clear, I am using the label “cosmopolitan” more in the ordinary dictionary than in the philosophical sense. In that more limited sense, I will offer a conception of the First Amendment that is (a) free from local prejudices or attachments, (b) widely distributed in terms of geographic domain, (c) to some extent a product of influences beyond our borders, and (d) part of an international system of human rights. I will compare this cosmopolitan orientation with its antonym – the “provincial” First Amendment. Here, too, I think the label is descriptively and normatively apt. Some have suggested that I use “democratic” instead. However, for reasons that will become apparent, I critique the conceptions of ”democracy” and self-government adopted under the traditional, provincial approach to trans-border First Amendment concerns. A summary of the provincial and cosmopolitan approaches follows after the break.
The basic precepts of First Amendment cosmopolitanism can be best understood by comparing them to the traditional, provincial approach to trans-border expressive and religious liberties. According to the provincial account, the First Amendment has little application or relevance in trans-border contexts. As the label implies, a provincial conception of the First Amendment treats its guarantees solely as a set of limitations on domestic governance. Under this view, First Amendment liberties are localized and territorially determined. This means that under a provincial orientation, the protections of the First Amendment are generally limited to domestic speakers addressing domestic audiences, localized associations and press activities, and the exercise of religious liberties within U.S. borders. Under this conception, trans-border liberties are considered peripheral rather than core First Amendment concerns.
First Amendment provincialism favors robust and preemptive exercises of federal immigration, national security, and diplomatic powers. Thus, under a provincial view, ideological immigration exclusions and restrictions on cross-border information sharing do not raise substantial First Amendment concerns. Provincialism also accepts and vigorously defends the principle that the nation must speak with a single voice in terms of its foreign affairs and relations. Further, although provincialism supports U.S. efforts to export First Amendment standards and norms, it rejects the notion that aliens enjoy First Amendment liberties at home or abroad. According to the provincial account, the First Amendment has a very limited extraterritorial domain — and essentially no domain at all insofar as aliens abroad are concerned.
In addition to this narrow conception of First Amendment liberties, provincialism generally rejects engagement with the trans-national. It staunchly defends and seeks to protect First Amendment exceptionalism with regard to expressive and religious liberties. However, in its strongest form provincialism resembles a form of rights imperialism. The recently enacted federal SPEECH Act, which forbids recognition by U.S. courts of foreign libel judgments obtained in nations that do not provide [N.Y. Times v.] Sullivan-like protections for libelous speech, is arguably one example of this orientation. So is Oklahoma’s “Save Our State Amendment,” which forbids judicial recognition in that state’s courts of Sharia and indeed all forms of foreign law. These and similar measures question the legitimacy of foreign judgments and foreign expressive and religious norms. They apply U.S. norms even when the U.S. has a very limited connection to the underlying transaction or activity, and even though singling out “foreign” religious beliefs for discriminatory treatment flies in the face of the First Amendment’s religious liberty guarantees.
In contrast, cosmopolitanism views the exercise of trans-border expressive and religious liberties as significant rather than peripheral First Amendment concerns. First Amendment cosmopolitanism is based upon principles of freedom of movement across borders, free trans-border information flow, portability of First Amendment rights and obligations, and respect for foreign expressive and religious norms. As these precepts suggest, First Amendment cosmopolitanism rejects the notion that expressive and religious liberties are strictly defined or determined by reference to territorial borders. Indeed, it rejects the notion that we can identify strictly demarcated ”domestic” and “foreign” spheres. This is especially so in our globalized or digitized era, in which expressive and religious activities and exercises of governmental power increasingly transcend territorial borders.
Under a cosmopolitan orientation, government power is not considered unchecked or plenary at or beyond our borders — even in traditional areas of “plenary” power such as immigration, national security, and foreign relations. First Amendment cosmopolitanism contemplates that laws restricting international travel and cross-border exchange, as well as limits on extraterritorial expressive and religious liberties, would be domesticated — in the sense that something closer to ordinary standards of judicial review would apply to them.
In addition, under a cosmopolitan approach, the First Amendment’s conceptual and operative domains would be considered more geographically expansive. Citizens, and even aliens in some circumstances, would enjoy First Amendment liberties regardless of frontiers or location. In the realm of foreign affairs, First Amendment cosmopolitanism rejects the unitary voice principle and views participation by sub-national governments and private actors in foreign policy debates as beneficial to democratic and national interests. In these and other respects, cosmopolitanism views the First Amendment as internationally relevant and at home in the world beyond our borders.
Consistent with this outlook, while First Amendment cosmopolitanism acknowledges the tensions between American exceptionalism and foreign expressive and religious norms, it rejects American isolationism, rights imperialism, and xenophobia. Instead, cosmopolitanism supports engagement with trans-national speakers, audiences, judgments, and legal sources. This will pose some uncomfortable questions regarding American sovereignty and First Amendment exceptionalism. However, those questions are already on the table and must be answered. To be clear, cosmopolitan principles do not invariably lead to a global speech standard or the diminution of First Amendment exceptionalism. However, neither do those principles reject importation of foreign norms, judgments, or sources merely because they are foreign.
Of course, I recognize that some — perhaps even many — of the precepts of First Amendment cosmopolitanism, not to mention specific applications, will be contested. We live in an era of increasing social and political tension with respect to foreign persons, ideologies, cultures, and religions. Students of the First Amendment’s history will recognize that this is a cyclical phenomenon. Today’s controversies regarding incendiary jihadist speech, association with foreign enemies of the U.S., the political influence of aliens, and importation of foreign expressive and religious norms mirror those dating from the founding era’s Alien and Sedition Act controversies, up through twentieth-century campaigns against communism and syndicalism.
Particularly during times of economic distress, foreign persons and ideas have been the focus of public angst and concern. Many Americans have looked back on such periods with a mixture of surprise and regret – surprise that our forebears treated foreign ideologies as per se threats, and regret that draconian measures such as imprisonment and deportation were imposed on the basis of speech, belief, and association. The reaction may well be similar when the specter of terrorism and the perceived threat from “foreign” religious beliefs give way to the next perceived threat emanating from beyond our borders.
Still, I recognize that some readers will reject the notion that our First Amendment has anything to do with “foreign” persons, ideologies, actions, and beliefs. This outlook ignores our past. Worse, it may actually imperil our future. Our First Amendment is intricately connected to emerging global marketplaces of ideas, increasingly relevant to matters of global as opposed to purely domestic concern, and frequently in competition with other liberty regimes across the globe. Contemporary discussions regarding the First Amendment must take into account twenty-first century realities regarding the social and political activities of speakers and activists, the changing nature of the press and press freedoms, the decline of strict territorial governance, and the rise of robust international engagement by citizens and public officials at all levels of government.
In sum, it is time to turn our attention outward insofar as First Amendment liberties are concerned. One of the principal goals of my book is to expand our collective vision regarding the contemporary First Amendment’s domain of operation and influence. Working through unresolved trans-border problems and attending to the First Amendment’s’ largely overlooked trans-border dimension can help us to critically analyze and understand the substance and strength of our national commitment to speech, press, and religious liberties. It is my hope that this project will produce a conception of the First Amendment that is responsive to the challenges of an increasingly globalized world, liberating to an increasingly digitized citizenry, and properly constraining with respect to a government whose powers affect the speech, association, press and religious liberties of citizens and aliens across the globe.
September 13, 2011 at 9:57 am
Posted in: First Amendment
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Responses (2)
A.J. Sutter - September 13, 2011 at 1:11 pm
1. It would help if you would give some specific examples illustrating how cosmopolitanism would lead to a different result from the provincial approach.
2. As far as I can recall, the enforcement of foreign judgments is a matter of comity. Why is rejecting the enforcement in the US of foreign judgments that don’t have certain protections for defendants “imperialistic”? Isn’t there a strong policy argument to be made for offering some safeguards here? In any case, I’m not clear why we should single out judgments that touch on First Amendment issues from foreign judgments in general. While the SPEECH Act removes judges’ discretion about the enforcement of certain foreign judgments, it seems to me that public policy grounds were already available to decline recognition of such judgments. Am I mistaken?
(BTW I don’t think this should be coupled to the Oklahoma amendment, which is stupidly overbroad in any case. E.g., read literally, it would forbid recognizing a marriage in a foreign jurisdiction as valid, should marital status become relevant to an issue in a court case. The proscription against courts’ considering “international law” would also forbid recognizing the validity of treaties entered into between the United States and foreign nations. Query, too, whether this might impact treaties with certain Native American nations – probably not a minor issue in Oklahoma.)
3. When you say “Citizens, and even aliens in some circumstances, would enjoy First Amendment liberties regardless of frontiers or location,” why isn’t that “imperialistic”? Suppose local laws in a foreign jurisdiction impose restrictions on free speech. Couldn’t a US court’s refusal to recognize the validity of those restrictions be considered “imperialistic”? Maybe the term is too two-edged to be useful in this context.
Timothy Zick - September 15, 2011 at 9:02 am
Thanks again, A.J., for your thoughtful comments. The broad goal of my project is to re-orient our thinking in terms of trans-border First Amendment concerns. This could result in different outcomes in decided cases. I think Holder v. HLP would have been decided differently under cosmopolitan principles. As well, some restrictions on foreign travel might violate cosmopolitan principles (foreign travel is currently protected as a weak liberty under the DPC rather than a strong right under the 1st Amendment). So might the ban on aliens’ contributions to political campaigns, some conditional spending measures that affect aliens, and even the search of laptops at the border. Many of the questions I discuss in the book are either unresolved or, as I said in my post, inadequately resolved. In addition to court challenges, cosmopolitanism would affect the manner in which policymakers approach issues ranging from Internet access and freedom to the conduct of foreign affairs.
As for the SPEECH Act, one view is that it exports First Amendment standards by refusing to consider application of foreign libel standards. Among others, Mark Rosen’s piece on “Un-American Judgments” advances the argument that this is a form of rights imperialism. Prior to the enactment of the SPEECH Act, courts were indeed using the public policy exception to deny recognition to foreign libel judgments. But it’s not at all clear that this exception warrants a blanket refusal to recognize such judgments. I agree that the U.S. has a significant interest in protecting First Amendment values. The question is one of means. Under cosmopolitan conflicts and judgment recognition principles, a more pluralistic approach would apply. In many cases, the foreign libel judgment may still be refused recognition. But not in every case.
I don’t view it as imperialistic to grant First Amendment protections to citizens abroad where their government is restricting expressive or religious liberties. Nor would it be imperialistic to grant aliens some First Amendmnet protections where their liberties are affected by application of U.S. policies abroad. My statement was not meant to suggest that foreign regimes could not apply their own speech laws, for example, to their citizens’ activities. The question is whether the U.S. ought to be constrained by First Amendment norms and standards when it acts abroad — i.e., does the First Amendment “follow the flag”?
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