I recognize that at this point the governmental speech architecture is not very well-developed.  But its foundation is coming into clearer focus.  In some spaces, including the workplace and a small public park in Pleasant Grove City, Utah, the Supreme Court has exempted certain government decisions from free speech scrutiny on the ground that the spaces do not function as forums for public speech, but rather as government speech spaces.  As I have argued elsewhere, at least on a conceptual level the Pleasant Grove decision comes [...]]]> In terms of free speech architecture, I think the developing “government speech” principle poses some important questions.  Under this principle, some spaces are principally reserved for government speech rather than public discourse.  Are government speech spaces exceptions to the doctrine Marvin otherwise views optimistically, a separate aspect of speech architecture, not part of speech architecture at all, or simply products of a flawed doctrine or principle? 

I recognize that at this point the governmental speech architecture is not very well-developed.  But its foundation is coming into clearer focus.  In some spaces, including the workplace and a small public park in Pleasant Grove City, Utah, the Supreme Court has exempted certain government decisions from free speech scrutiny on the ground that the spaces do not function as forums for public speech, but rather as government speech spaces.  As I have argued elsewhere, at least on a conceptual level the Pleasant Grove decision comes close to turning a traditional public forum into a governmental forum.  Given its uncertain parameters, a host of other spaces might be affected by the government speech principle.  These might include some virtual spaces, such as government websites, that might otherwise serve as forums for public discussion.  Under the developing government speech principle, the more involved the government is in terms of funding, managing, and controlling speech activity in a particular space, the more plausible its argument that access may be denied — even on the basis of content.  

Perhaps this is just a small wrinkle with regard to speech architecture.  Or perhaps the government speech principle will create some significant cracks or holes in the archictecure.  Either way, I wonder what, if anything, Marvin thinks this doctrine says about the government’s relationsip to speech spaces.

In an earlier post, I noted some of the benefits of Marvin’s [...]]]> With regard to traditional public forum spaces, the Supreme Court has imposed certain duties on governments as “trustees.”  These duties include a responsibility to ensure access to public parks, streets, and (most) sidewalks, and adherence to a principle of anti-discrimination (although it may not include a duty to preserve any forum spaces in perpetuity, or require diversity of speech or speakers).  The trusteeship principle is problematic in the sense that it continues what I (and others) believe to be the categorical error of treating forum doctrine as a matter of property principles, rather than deeper spatial concerns.  However, the principle does provide a basis for imposing some obligation on government to open, maintain, and perhaps preserve certain spaces.

In an earlier post, I noted some of the benefits of Marvin’s broad conception of spatial architecture.  Here I raise a potential complication.  With regard to public forum spaces, the trustee concept arises principally from the fact of governmental ownership and the need for minimal access for exercise of fundamental rights of speech, assembly, and petition.  Trusteeship is rooted in the special nature of these places, in particular their historical connection to First Amendment liberties.  I wonder what normative or other basis exists for treating other speech spaces in a similar manner.  In other words, on what basis can government be said to have an obligation (whether judicially enforceable or not) of some sort to open and diversify not only traditional public forum spaces but  new spaces, virtual spaces, private spaces, and regulated (but not publicly owned) spaces?  I undertand from Marvin’s account that the doctrine can be interpreted to support this result, and that legislators can be “constitutional norm entrepreneurs.”  But to impose or argue for diversity, sufficiency, and other requirements across a broad range of channels and spaces, don’t we need a trusteeship principle, or something like it, for the entire architecture?  Can one be found in, or fashioned from, doctrine or other sources?

In my own work on speech and spatiality, I have focused on the importance to freedom of speech, assembly, and petition of access to public parks and plazas (public forums).  Marvin’s conception of speech spaces is much broader.  [...]]]> I too want to thank Danielle and Concurring Opinions for hosting this discussion.  I think Marvin has addressed a really timely and important topic, speech spaces and architecture, in his forthcoming article.  As readers can tell from his posts here and elsewhere, and from reading the piece, Marvin challenges a fair amount of what passes for conventional wisdom in the free speech area.  I look forward to discussing his thesis and some of its implications.  In this post, I want to address why the framing of the issues Marvin addresses as distinctly spatial ones is critically important.  

In my own work on speech and spatiality, I have focused on the importance to freedom of speech, assembly, and petition of access to public parks and plazas (public forums).  Marvin’s conception of speech spaces is much broader.  It includes not only these traditional forums, but various channels of communication.  Thus, he provides an expansive conception of free speech spaces, one that extends far beyond my own conception of the “expressive topography.”   Under Marvin’s conception, newspapers, broadcast and cable stations, the U.S. mail, and the Internet are all speech spaces.  Thay are part of our expressive architecture.  By treating these channels as spaces or places rather than simply mediums of expression, Marvin begins to push against traditional conceptual boundaries.  By framing the discussion in terms of spataility, he begins the process of rearranging conceptual, theoretical, and doctrinal boundaries.   

The central payoffs from this conceptual framing are two-fold. 

First, Marvin is able to provide a comprehensive conceptual framework, one which captures a broad range of spaces — physical, virtual, public, private, local, national, and global.  Although he offers a spatial framework, Marvin avoids the critical mistake of the public forum doctrine.  The analysis does not turn on how we characterize or categorize these spaces — they are all important to speech rights, and they all implicate common principles relating to government facilitation and regulation of expression.  As the Occupy protests and various consumer petition drives have recently shown, now more than ever spatial pluralism is crucial to the full enjoyment of expressive rights. 

Second, and nearer the core of Marvin’s contribution, adopting a spatial frame leads us to the foundation of certain First Amendment docrtines and principles.  Space is antecedent and primary.  As breathing requires air, speech requires space.  As Marvin observes, our free speech doctrines and principles recognize this fact — mostly in implicit terms. Some of these doctrines and principles are facilitative and positive in character, rather than merely or solely negative.  The doctrinal implications of this spatial frame will need to be  worked out.  However, Marvin seems to be addressing primarily legislative and administrative officials.  As Jack Balkin and others have noted, these officials will have asubstantial influence on speech architecture in both the near and more distant future.

I’ll close with this:  If “I Am America,” sung by Krista Branch, is a plausible Tea Party “anthem,” then what anthem might be appropriate for OWS?  If, as Frank Pasquale has observed, there is considerable substantive overlap between these movements, might this be an anthem for both? 

The lyrics:

Pay no attention to the people in the street Crying out for accountability Make a joke of what we believe Say we don’t matter ’cause you disagree Pretend you’re kings, sit on your throne Look down your nose at the peasants below I’ve got some news, we’re taking names We’re waiting now for [...]]]> The ”Occupy” movement, which started in September, made this an esepcially timely guest visit for me.  My thanks to Danielle for inviting me, to the CoOp regulars for allowing me to make use of their terrific forum, and to those who commented on my posts. 

I’ll close with this:  If “I Am America,” sung by Krista Branch, is a plausible Tea Party “anthem,” then what anthem might be appropriate for OWS?  If, as Frank Pasquale has observed, there is considerable substantive overlap between these movements, might this be an anthem for both? 

The lyrics:

Pay no attention to the people in the street
Crying out for accountability
Make a joke of what we believe
Say we don’t matter ’cause you disagree
Pretend you’re kings, sit on your throne
Look down your nose at the peasants below
I’ve got some news, we’re taking names
We’re waiting now for the judgment day

[Chorus]
I am America, one voice, united we stand
I am America, one hope to heal our land

There is still work that must be done
I will not rest until we’ve won

I am America

You preach your tolerance, but lecture me
Is there no end to your own hypocrisy
Your god is power, you have no shame
Your only interest is political gain

You hide your eyes and refuse to listen
You play your games and abuse the system
You stuff your pockets while Rome is burning
I’ve got a feeling that the tide is turning

[Chorus]
I am America, one voice, united we stand
I am America, one hope to heal our land

I will not give up on this fight
I will not fade into the light, I am America

[Bridge]
You stuff your pockets while Rome is burning
I’ve got a feeling that the tide is turning

[Chorus]
I am America, one voice, united we stand
I am America, one hope to heal our land

I will not give up on this fight
I will not fade into the night, I am America

In a very interesting [...]]]> There are reports that WikiLeaks may have to shut down owing to financial difficulties.  That will please many, like Vice President Biden, who think Julian Assange is nothing more than a high-tech terrorist.  If Assange’s explanation is to be credited (and I recognize this is a big “if” for some), the website’s financial difficulties stem from a concerted effort by U.S. officials to pressure financial intermediaries (i.e., PayPal, Master Card, Visa) not to permit donors to utilize their sites to make donations.  Some may recall that when WikiLeaks first began publishing confidential information about U.S. war operations and diplomacy, some government officials publicly called on these intermediaries to block donations.  This, in turn, led to denial-of-service reprisals by hackers against the cooperating intermediaries.

In a very interesting recent article entitled Orwell’s Armchair, Derek Bambauer (Brooklyn Law) argues that governments have turned to persuasion of intermediaries and other indirect forms of “soft censorship” to control Internet content.  Bambauer argues that through these indirect methods, government officials are engaging in a form of Internet censorship that is often as or more effective than “hard” forms of legal censorship.  Focusing on issues of transparency, breadth, and accountability, Bambauer argues that, in general, soft censorship is less legitimate than hard censorship.  He urges, perhaps counter-intuitively, that the government ought to proceed by way of statute if it intends to censor or regulate content on the Internet.

My point here is not to assess the merits of Bambauer’s proposal.  I’m more interested in his descriptive claim — namely, that despite all the talk in the U.S. of a free and unfettered Internet, the U.S. government is indeed “censoring” content in this space.  I think the WikiLeaks case highlights one of the most pressing concerns in what I refer to in a forthcoming article as the “emerging global theater.”  Faced with diminished power to control the flow of information on the Internet, officials in the U.S. are naturally seeking other means by which to regulate certain types of harmful content (i.e., IP infringement, terrorist advocacy, disclosure of government secrets).  Many of these means are, as Bambauer claims, less transparent than legislation or administrative regulation.  We can debate whether certain forms of “soft” censorship constitute state action, or even “censorship.”  However, there is little question that what Bambauer refers to as the government’s “toolkit” for influencing the content Americans and others have access to on the Internet contains a set of “soft” components; these will become increasingly important in terms of online content control in the years to come.  Methods of “soft censorship” will not likely result in absolute suppression of content.   One of the things the government is learning is that content does not simply disappear from the Internet, even when the speaker is jailed or executed.  However, both soft and hard forms of regulation can still have a signficant effect on the free flow of online information.  Bambauer’s article is important insofar as it nudges us to think more carefully about different forms of content control in cyberspace.

Media outlets prefer clean and concise narratives.  In terms of substance, they want to be able to report on the specific, concrete demands of a group or movement.  The OWS demonstrations have obviously been frustrating in that regard.  In the absence of a concrete slogan or message (and sometimes despite one),  the media tend to resort to a bias in favor of conflict reporting.  They focus on confrontation with police, or highlight fringe elements in the group.  There has been plenty of this kind or reporting, and fake reporting (e.g., The Daily Show), concerning the OWS demonstrations.  Many pundits and commentators have [...]]]> One of the fascinating things about the nascent movement on Wall Street and elsewhere is the attempt by various groups to characterize and to some extent normalize it through devices of discourse and narrative.     

Media outlets prefer clean and concise narratives.  In terms of substance, they want to be able to report on the specific, concrete demands of a group or movement.  The OWS demonstrations have obviously been frustrating in that regard.  In the absence of a concrete slogan or message (and sometimes despite one),  the media tend to resort to a bias in favor of conflict reporting.  They focus on confrontation with police, or highlight fringe elements in the group.  There has been plenty of this kind or reporting, and fake reporting (e.g., The Daily Show), concerning the OWS demonstrations.  Many pundits and commentators have offered serious proposals in terms of potential OWS agenda items.  The political right and left have their own narratives.  As the New York Times put it:  “The take on the right is that Occupy Wall Street is the same old riffraff of leftist anarchists, unlike the grass-roots conservative Tea Party; seen from the left, it’s an authentic uprising against the huge income disparity in America and a call for redistributing the wealth.”  The comparison to the Tea Party was inevitable.  Although each protest movement is unique, many seek to make sense of new movements by referring to movements of the recent, and even distant, past.  Historical narratives can be somewhat helpful in terms of situating and understanding new movements.     

Constitutional law professors have their own preferred discourse with respect to social movements.  As I discussed in my last post, Jack Balkin has suggested that the OWS demonstrations could be framed as a constitutionally-inspired movement.  Whether the roots are in the Guarantee Clause, as Balkin suggests, or the Preamble, which I offered as a plausible list of OWS concerns, engaging in this sort of discourse may be something of an occupational hazard.  Of course, Balkin and I may genuinely think we see a connection to the Constitution in the OWS protests.  However, the truth is that this is a convenient and familar discourse for constitutional scholars.  It allows us to talk about OWS in a way that makes sense to us, in a language rooted in constitutional text and expertise.  As Paul Horwitz and others have observed, however, focusing on constitutional dicourse and pressing this kind of narrative on the OWS movement may not be wise or particularly healthy in terms of public discourse.  As the Tea Party’s success has demonstrated, rooting a movement in the Constitution provides a structure for arguments and a narrative that many find attractive.  However, not all movements are about the Constitution.  Not all protests make substantive constitutional claims.  

The basic desire to understand and frame the OWS demonstrations is perfectly understandable.  This is how people generally tend to make sense of seemingly unique phenomena — by comparing them to similar phenomena, or situating them in a familiar narrative or discourse.  Perhaps, though, we ought simply to give this potential movement, like others, the necessary breathing space to channel its anger and resentment into a coherent set of political and social (and perhaps constitutional) claims.  This requires someting ubiquitous media and the blogosphere make extremely difficult — namely, the patience to allow the protesters to engage in speech, peaceable assembly, and petition and to listen through the clatter that attends public protests to their specific complaints.  At this point, no one knows which narrative best fits this movement — or even whether it will eventually become a movement.  There may be kernels of truth to the media narratives, the left/right narratives, and the constitutional discourse.  We ought to listen to OWS supporters’ complaints, to gauge their frustration and the extent to which it is shared by other Americans, and to try to understand the implications of their grievances.  As the Times put it:  ”When a cold Washington [or New York] winter arrives, most of these tents are likely to fold up. It’s not as likely that the sentiments will disappear.”     

The fact that the movement could be about the Constitution does not mean that it ought to be, or that this is the most effective means of garnering public support for its agenda.  Many successful social movements have rooted claims in constitutional text and principle.  The Tea Party is only [...]]]> Jack Balkin suggests that the Occupy Wall Street (OWS) demonstrations are, or at least could be, rooted in the Constitution.  Balkin suggests that OWS’s complaint is partly about Citizens United and the perceived corruption of the political system by corporate interests.  On a deeper level, he suggests, OWS’s complaint is that there has been a systemic failure of government — a denial of a “Republican Form of Government.”  Thus, Balkin suggests, OWS is rooted in Article IV’s Guarantee Clause. 

The fact that the movement could be about the Constitution does not mean that it ought to be, or that this is the most effective means of garnering public support for its agenda.  Many successful social movements have rooted claims in constitutional text and principle.  The Tea Party is only the most recent example.  The Tea Party’s complaints map very well onto current debates over thinkgs like the extent of federal power and federalism.  As Balkin and others have noted, the Tea Party has been successful at taking some claims that seemed “off the wall” and putting them, as Mark Tushnet perhaps more appropriately suggests, “on the table.” 

This may not work quite as well for OWS.  One can certainly think of constitutional arguments that have been in the cabinet, or on the shelve, that OWS might want placed back “on the table.”  Among these might be arguments for positive or affirmative fundamental rights to housing, subsistence, health care, and education.  OWS supporters might support measures that level the playing field with regard to expression, such that “poorly financed causes” have equal access to media and communications channels and the influence of corporate wealth on politics would be diminished or eliminated.  And, of course, they could define their movement in anti-Tea Party terms — i.e., by keeping some constitutional arguments “off the table” and supporting the broad constitutional powers to spend, tax, and regulate commerce that Congress has possessed and exercised since the New Deal.  The former arguments are likely to stay off the table, in part because they have no political traction in Congress or in state legislatures.  Among other difficulties, defining themselves as an anti-Tea Party constitutional movement allows the Tea Party to define the agenda and set the terms of debate.  

OWS might become a constitutional movement.  It might, as Balkin suggests, find some purchase in the Guarantee Clause (although that provision seems not to translate well as a political slogan or platform).  At this point, however, I think the part of the Constitution that speaks to OWS’s concerns most directly is its opening passage — the Preamble.  

“We the People“ . . . in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution of the United States of America.” 

These fundamental principles seem to reflect what the protesters are most concerned about.  This is a nascent populist movement.  I’m sure if they were polled, the ”99 percent” would embrace the notion of a ”Republican form of government.”  But they would embrace that principle because it is supposed to produce ”a more perfect” union, justice, tranquility, general welfare, and the “blessings of liberty” across generations.  OWS supporters seem less concerned with the specifics of campaign finance law or principles of republican government than with their loss of employment and security, the decline in economic and social welfare, and the dimming prospects for cross-generational enjoyment of these and other Blessings.  They blame the structure of government, but only in part.  They lament what they view as a fundamental breach of the social contract — by their government, corporations, and fellow citizens.  That’s a constitutional argument of sorts, but I think it’s also a more fundamental complaint about the current state and direction of social and economic welfare in the U.S.      

Addendum:  Over at Balkinization, Jason Mazzone and Jack Balkin debate the meaning of the Guarantee Clause and its relevance to OWS – here, here, and here.                      

Mayor Bloomberg has publicly stated that he wants  to protect protesters’ speech and assembly rights.  But he recently suggested that “the Constitution does not protect tents . . . It protects speech and assembly.”  That’s right.  But the tents in Zuccotti Park are not on public property.  Whether they knew it or not, the protesters may have chosen their contested place very wisely [...]]]> Today is the one-month anniversary of the Occupy Wall Street demonstration.  It is fair to say that the media, a decent portion of the American public, and many people abroad are now paying attention.  There is still, of course, no guarantee of long-term success or longevity.  However, to  sustain something like the occupation for more than a few days, much less several weeks, is nothing short of remarkable. 

Mayor Bloomberg has publicly stated that he wants  to protect protesters’ speech and assembly rights.  But he recently suggested that “the Constitution does not protect tents . . . It protects speech and assembly.”  That’s right.  But the tents in Zuccotti Park are not on public property.  Whether they knew it or not, the protesters may have chosen their contested place very wisely – the private owners of Zuccotti Park have been slower to move against the protesters than the City might likely would have been.  In at least one locality, officials reportedly closed a public park in response to an “occupation” protest.  Judging from the police response to the occupiers, and from other limits imposed by the Bloomberg Administration on public assemblies and demonstrations, it seems clear that the City would have intervened if it owned Zuccotti Park.  Unless and until the trespass laws are enforced against the protesters, the City is not likely to seek to remove them.  It’s property law, not the First Amendment, that has thus far determined whether the protesters have a right to be in Zuccotti Park. 

Hizzoner made another interesting statement about the occupation recently.  He expressed concern that the occupation had adversely affected other citizens’ “right to be silent.”  Elaborating, Mayor Bloomberg said: “We can’t have a place where only one point of view is allowed. There are places where I think it’s appropriate to express yourself, and there are other places that are appropriate to set up Tent City. They don’t necessarily have to be one and the same.”  How exactly is this public demonstration affecting those who want to remain silent?  Are the 1% somehow being silenced by the nature and scope of the occupation?  Are those who disagree with the protesters unable to mount a counter-protest?  A recent poll indicates that 72% of NYC voters support the occupation so long as it remains peaceful.  Are the viewpoints of the other 28% not being heard?   

If the Mayor is suggesting displacement of the occupation, he’s missing the point of proximity.  The occupiers are making powerful symbolic use of a location near Wall Street.  They are contesting place to reclaim something they feel has been taken from them.  Relocating the occupation would not “balance” viewpoints.  Rather, it would deprive the ocupiers of the principal means of conveying their message.            

Like previous protests, this one has claimed public space in order to make a public statement — of discontent and dissatisfaction so far, and perhaps a more affirmative statement in the days to come.  (Interestingly, the most prominent space in lower Manhattan — Zucccotti Park — is privately owned, and thus not technically one of the quintessential public forums open for [...]]]> The “occupation” of wall street and other spaces across the country originated online, and the protesters have set up their own media camps to disseminate videos and other information to the public.  These are some of the unique features of contemporary protests.  But what has been striking so far is the extent to which these protesters have relied on older forms of contention and information dissemination. 

Like previous protests, this one has claimed public space in order to make a public statement — of discontent and dissatisfaction so far, and perhaps a more affirmative statement in the days to come.  (Interestingly, the most prominent space in lower Manhattan — Zucccotti Park — is privately owned, and thus not technically one of the quintessential public forums open for public assembly and debate.)  The occupation is  physical; like other demonstrations, a substantial part of its power derives from the visual solidarity of its participants and the disruption the occupation is creating (of course, these things may have downsides and costs in terms of the efficacy of protests).  The occupation is relying on traditional protest repertoires such as marches and sit-ins — indeed, the Wall Street occupation is in one sense an extended outdoor sit-in.  Many of the protesters, though tech-savvy, carry makeshift placards and signs.  Some dress in costumes.  Some sit in drum circles.  Some advocate anarchy.  They have trouble finding suitable bathrooms, and have clashed with merchants.  To this point, the protesters have sought to move by consensus — a method of organizing that has led to frustration in past movements.  They even have their own newspaper , which they circulate to passersby and others (who says the traditional press is dead?).  The press and police have dutifully played their roles too — the cops have used escalated force and the media have demonstrated conflict reporting biases. 

This reliance on traditional forms of public contention should not come as a complete suprise.  Technology is undeniably useful to protest movements.  It can facilitate organization and dissemination of information.  It can help protesters bypass media filters, at least to some extent.  It can even facilitate sousveillance, or surveillance from the bottom.  But as I argued in Speech Out of Doors, online protests simply do not have the same communicative impact as those that take place out of doors.  That impact derives from their physicality, their presence, their human dimension.  As one veteran journalist observed with respect to the fledgling newspaper:  “[N]ewspapers convey a sense of place, of actually being there, that digital media can’t. When is the last time somebody handed you a Web site?”  In a broad sense, that is what traditional protests provide — a sense of place.

As the title suggests, the authors conclude that in recent decades (particularly since the 1990s), other nations have become increasingly unlikely to model their rights-related (or structural) constitutional provisions on the U.S. Constitution.  Their study, which is based on 60 years of data, offers a systematic analysis of the declining influence of U.S. constitutionalism abroad.  With regard to rights in particular, the authors conclude that the U.S. Constitution is increasingly far from the global [...]]]> Scholars have long debated the extent to which the U.S. Constitution has influenced constitution-making and constitutional interpretation abroad.  David Law (Washington University) and Mila Versteeg (Virginia) have recently posted an interesting empirical study of the extraterritorial influence of the U.S. Constitution, entitled “The Declining Influence of the United States Constitution.”   I recommend it to anyone interested in comparative constitutionalism and formal constitutional modeling.  

As the title suggests, the authors conclude that in recent decades (particularly since the 1990s), other nations have become increasingly unlikely to model their rights-related (or structural) constitutional provisions on the U.S. Constitution.  Their study, which is based on 60 years of data, offers a systematic analysis of the declining influence of U.S. constitutionalism abroad.  With regard to rights in particular, the authors conclude that the U.S. Constitution is increasingly far from the global mainstream, both in the sense that it contains provisions not found in most constitutions (i.e., a right to bear arms, a formal separation of church and state) and in the sense that its Bill of Rights does not contain what the authors refer to as a developing “generic component” of constitutional rights (the existence of which casts some doubt on the notion that constitutions are strongly expressive instruments).  Lack of formal modeling is only one datum concerning the declining influence of the Bill of Rights.  Many commentators have argued that the Supreme Court’s reluctance to cite or rely upon foreign legal and constitutional sources may be diminishing the global influence and appeal of American constitutional jurisprudence and norms.  

Insofar as countries still look to the U.S. as an example, Law and Versteeg conclude that it is likely not to imitate but rather to avoid the Constitution’s perceived flaws.  Although there is no emergent global model, the authors conclude that at least with respect to nations sharing an Anglo-American legal tradition, Canada’s constitution has become far more influential than the U.S. Constitution.  The causes for the decline of U.S. constitutionalism are varied.  The authors point to several possible factors, including the rise of a superior model, a “general decline of American hegemony,” “judicial parochialism,” the “obsolescence” of the U.S. Constitution, and America’s exceptionalist creed.   

Like the rest of the Bill of Rights, the First Amendment is exceptional.  Nations are not inclined to copy its absolutist language.  As in other rights areas, many have opted instead for speech and press language similar to that found in transnational human rights instruments.  For some time now, foreign courts have been unlikely to follow American approaches with regard to hate speech, libel, and other First Amendment concerns.  The global marketplace has reached rather clear conclusions on these issues. 

With regard to both formal modeling and application, the First Amendment is likely to remain exceptional among the world’s expressive (and religious) liberty paradigms.  As I mentioned in previous posts, this has implications for “exporting” First Amendment norms and principles.  In essence, Law and Versteeg’s study provides support for the proposition that the market for exporting formal First Amendment norms has drastically diminished.  The principal export markets still open include diplomatic channels and the global market for communications technologies.  As the U.S. becomes ever more exceptional in terms of free speech and press freedoms, it might begin to exhibit greater protectionism in an effort to preserve its exceptional approach.  Or it might find there are benefits to transnational engagement and dialogue, even where cultural and constitutional expressive norms seem hard-wired and unalterable.  Whichever approach the U.S. adopts, in light of the emerging consensus on rights it will at least have to pay “decent respect to the opinions of mankind.”

Civil liberties groups continue to complain that the Obama Administration is excluding aliens based on speech or associational concerns.  In the most recent case, the visa of Kerim Yildiz, a Kurdish human rights activist, was delayed.  According to the ACLU, teh delay was owing to his advocacy and criticism of American foreign policy.  (The visa has recently been granted, without explanation for the delay.)  Cases like this will continue to arise.  Whether the executive has the constitutional authority to exclude aliens on ideological grounds has never been definitively resolved.  Kleindienst v. Mandel (1972) held that the [...]]]> Two trans-border First Amendment issues I plan to address in my book-in-progress are ideological immigration exclusions and the challenges posed by harmful expression in the emerging global theater.  Both issues have been in the news recently.

Civil liberties groups continue to complain that the Obama Administration is excluding aliens based on speech or associational concerns.  In the most recent case, the visa of Kerim Yildiz, a Kurdish human rights activist, was delayed.  According to the ACLU, teh delay was owing to his advocacy and criticism of American foreign policy.  (The visa has recently been granted, without explanation for the delay.)  Cases like this will continue to arise.  Whether the executive has the constitutional authority to exclude aliens on ideological grounds has never been definitively resolved.  Kleindienst v. Mandel (1972) held that the government must have a “facially legitmate and bona fide” reason for exclusion and strongly implied that courts were not empowered to look behind the government’s explanation.  The Obama Administration has lifted previous exclusion orders that appeared to be based at least in part on ideological concerns.  However, the Administration has refused to disclaim the constitutional authority to exclude aliens who espouse terrorism or whose advocacy otherwise threatens national security.  Other countries openly engage in, and even tout, ideological exclusion of aliens.  As I’ll argue in the book, this is one area in which I think the First Amendment ought to be exceptional.   

The recent drone attack that claimed the lives of two American citizens in Yemen involves a potentially more troubling practice.  The target of the drone strike was Anwar Al-Awlaki, an American citizen who, according to the government, was a principal propagandist for Al Queda and an organizer of terrorist attacks in the U.S. and abroad.  A companion, Samir Khan, also an American citizen, was killed in the strike.  Khan was reported to be an editor of a pro-jihadi publication.  The legality of the drone program in general is beyond my scope here.  I am interested in the free speech implications of this practice.  No court had ever heard evidence of the allegations against Al-Awlaki (a lawsuit brought by his father was dismissed on justiciability grounds), or Khan.  Insofar as the targeting of a citizen is based in part on his speech or associational activities, the First Amendment is at least implicated ( the Supreme Court has assumed, but never actually decided, that the First Amendment applies to citizens extraterritorially).  Could a citizen be executed in this fashion solely for expressive activities?  Even accepting the CIA’s allegations against Al-Awlaki, Khan’s death would seem to raise this uncomfortable question.  If, as the Supreme Court recently held in Holder v. HLP, speech that is “coordinated” with foreign terrorist organizations can be criminalized, then it may not be a giant leap to target a citizen for execution based solely on his propagandist activities.  The answer may depend, as it does in the detention area, on the propagandist’s status as an enemy combatant or as an agent of the enemy.  (Some old cases suggest that enemy-aiding speech might support a treason conviction.)  Al-Awlaki and others have demonstrated that remotely located speakers can pose real threats to American interests and security.  Determining whether targeted execution is a constitutional response to that threat may require in some cases that we consider not only due process concerns, but free speech ones as well.

Like others, I’ve been watching with great interest the “Occupy Wall Street” protest, and have noticed that this nascent movement has begun to receive more extensive media coverage (see here and here, for example).  I’m encouraged that such a diverse and passionate group has devoted time and energy to public dissent, and has used traditional public places like parks and streets to do so.  And they’ve been savvy about it so far — using technology in innovative ways, creating public space, etc.  But I’ve also expressed some kepticism that a movement with no official leadership or hierarchy, uncertain intellectual and public relations foundations, a diverse menu of grievances, a relatively apathetic public, a media generally focused on [...]]]> Thanks to Danielle and the regulars for inviting me to extend my guest stint a bit longer. 

Like others, I’ve been watching with great interest the “Occupy Wall Street” protest, and have noticed that this nascent movement has begun to receive more extensive media coverage (see here and here, for example).  I’m encouraged that such a diverse and passionate group has devoted time and energy to public dissent, and has used traditional public places like parks and streets to do so.  And they’ve been savvy about it so far — using technology in innovative ways, creating public space, etc.  But I’ve also expressed some kepticism that a movement with no official leadership or hierarchy, uncertain intellectual and public relations foundations, a diverse menu of grievances, a relatively apathetic public, a media generally focused on conflict rather than message, and a police force that is apparently dedicated to escalating its use of force can actually develop into an effective long-term protest movement.  (In this post, Frank Pasquale has collected links to more optimistic commentary, and offers some encouraging comments of his own.) 

In the short term, the last characteristic mentioned above may actually help to sustain the protest for some period of time.  Like other movements, including most prominently the civil rights movement, the Wall Street occupation appears to be benefitting somewhat from the conflict dynamic with NYC authorities.  Pepper-spraying, netting, harassing, and arresting protesters will engender at least some measure of sympathy from the public.  As distasteful, unpleasant, and dangerous as these encounters may be, some movements need them in order to garner public attention and sympathy and to energize current and would-be participants.   

Not all movements need this sort of conflict.  Although it relied in part on public demonstrations, the Tea Party movement, which faced many of the same limitations now affecting the Wall Street demonstrators, seems thus far to have succeeded without any significant conflict with authorities (although there were certainly some tense moments at some public rallies).  Of course, there may be demographic and, more importantly, organic reasons for this distinction.  For all their grousing about the political process, Tea Partiers want access to it – ostensibly in order to effect fundamental change.  Sharp conflicts with police and other authorities serves no real purpose for such a movement, which wants to retain legitimacy after the tents are folded and the placards stored away.  For the occupiers, though, the agenda (insofar as one is becoming clear) seems to be opposition to private greed — banking excesses, corporate welfare, etc.  It may take time for that message to develop and be disseminated.  In the meantime, conflict will help keep the occupation in the news and in the public eye.  Here as elsewhere, resort to escalated force is a counter-productive policing method.  

Of course, the protesters will need more basic forms of sustenance as well.  So kudos to the local pizzeria offering a special on “occu-pies.”  Clearly, the movement does not object to all aspects of free enterprise.

As police officers in New York City and elsewhere have learned, their public policing activities will almost certainly be recorded.  In [...]]]> According to this report, the actions of a New York City police officer who used pepper spray on some Wall Street protesters are under investigation by the NYPD and the Manhattan District Attorney.  The use of this kind of force might be appropriate in some circumstances.  However, based on the videos I have seen, use of pepper spray in this instance appears to have been unwarranted.  Of course, I’m aware that video evidence like this is subject to differing interpretations and that not all of the activity on the street is visible in any one video.  We will have to wait for the results of the internal and external investigations to draw conclusions. 

As police officers in New York City and elsewhere have learned, their public policing activities will almost certainly be recorded.  In what seem like ancient times, before the networking of public places and persons, this incident would likely have received little if any public or official attention.  Today, as Danielle points out in this post, protesters are recording police and police are recording protesters.  Meanwhile, particularly in places like Manhattan, CCTV cameras are recording everyone and everything.  Whether this will ultimately lead to more or less protection, for civil liberties in general and public protest in particular, remains to be seen.

As the protesters have recently learned, the police do not have unlimited tolerance for occupation of public spaces and permit-less demonstrations.  It is illegal to march in the streets of New York City without a valid permit.  Protesters typically work in advance with police officials to map routes and even to arrange for peaceful arrests.  This ensures a space for protest.  But it diminishes the disruptive impact and symbolism of public dissent.  In this instance, the Wall Street protesters declined to negotiate the terms of their demonstrations.   Although [...]]]> The Occupy Wall Street protest is now in its second week.  As I mentioned in my last post, this social-network inspired demonstration faces several obstacles.  Among these, two deserve special attention.  One obstacle is short term and the other is a more long-term concern. 

As the protesters have recently learned, the police do not have unlimited tolerance for occupation of public spaces and permit-less demonstrations.  It is illegal to march in the streets of New York City without a valid permit.  Protesters typically work in advance with police officials to map routes and even to arrange for peaceful arrests.  This ensures a space for protest.  But it diminishes the disruptive impact and symbolism of public dissent.  In this instance, the Wall Street protesters declined to negotiate the terms of their demonstrations.   Although they were initially allowed to peacefully occupy park space and were tolerated so long as they did not obstruct traffic, the police have turned up the heat.  The orange mesh netting first used at the 2004 Republican National Convention has been taken out of storage and put to use.  Pepper spray has been used on several protesters — including some who claim that they were peacefully protesting and in compliance with police demands.  The protesters’ determination and resolve will be tested as conditions on the ground intensify.  They will have to endure escalated uses of force by police.  In addition to the sacrifices of time and physical comfort, some will have to be willing to risk arrest and jail time.  These challenges are in addition to the usual problems of message control, rogue violence within the movement, and negative press accounts that focus more on violence and conflict than the substance of protesters’ grievances.

All nascent social movements face these sorts of short-term challenges as they vie for public attention and attempt to take root in public consciousness.  But there is a bigger challenge, one I alluded to at the end of my last post.  The challenge is broader and more deeply ideological than day-to-day street politics on Wall Street or the protests in Madison, Wisconsin (a more appropriate analog than the Arab Spring for what is happening on Wall Street today).  As Michael Kazin, a history professor at Georgetown University, observed in a recent op-ed, ”unionists and other stern critics of corporate power and government cutbacks have failed to organize a serious movement against the people and policies that bungled the United States into recession.”  As Kazin notes, the successes of earlier populist movements (of the left and the right) depended on decades of organizing, institution-building, funding, and articulation of populist platforms.  For Wall Street’s putative occupiers, the reality of corportate greed and economic mismanagement is evident.  But as Kazin points out: “If activists on the left want to alter this reality, they will have to figure out how to redefine the old ideal of economic justice for the age of the Internet and relentless geographic mobility.”  That serious long-term challenge cannot be met on the streets of Manhattan or in the Capitol building in Madison.          

As public protests go, this one seems to have all the usual elements.  [...]]]> Although the mainstream media has given it little attention, this past week there has been a public protest near Wall Street in Manhattan.  Fueled largely by social media, “Occupy Wall Street” demonstrators have descended on Wall Street to protest corporate greed.  Who are the protesters?  According to the Occupy Wall Street Web page:   ”Occupy Wall Street is [a] leaderless resistance movement with people of many colors, genders and political persuasions.  The one thing we all have in common is that We Are The 99% that will no longer tolerate the greed and corruption of the 1%.”  As the name implies, the group plans to “occupy” — i.e., remain in the vicinity of — Wall Street for some indefinite time.

As public protests go, this one seems to have all the usual elements.  (One of my former students has been at the protest site, and I’ve followed reports of the protest online.)  There’s been a heavy police presence.  Police have arrested several protesters for blocking access to sidewalks, wearing masks, and other public disorder offenses.  They’ve set up barricades and protest zones (which, in this case, demonstrators have largely refused to use).  The protesters have communicated their overarching message by various means — including, in the case of a few women, going topless and proclaiming that they cannot afford shirts.  Although it is not clear whether the police have actually attempted to block or interfere with wireless networks in the protest area, some on the scene have claimed that officers demanded that tarps and other items that facilitate social networking and digital transmissions be removed.   

It was only a matter of time before disgruntled, unemployed and financially insecure twenty-somethings did something to protest the state of the economy.  Their complaints are serious, and the protesters have thus far acted with restraint and demonstrated peacefully.  The protesters are drawing comparisons between their protests and the Arab Spring protests in Egypt, Tunisia, Yemen, and other countries.  Mayor Bloomberg drew the same comparison when he said of the protests:  “You have a lot of kids graduating college can’t find jobs,” he said in response to a question about the poverty rate. “That’s what happened in Cairo. That’s what happened in Madrid.  You don’t want those kinds of riots here.” 

I think we have to be very careful with such comparisons.  The means of protest — a diffuse, social-network-fueled, occupation-style demonstration — are certainly comparable.  But insofar as the protesters seek to keep close company with those in Tahrir Square and similar locations, the comparison seems less apt.  I don’t think the occupants of Wall Street actually seek a large-scale revolution.  Rather, they want others to rally around their cause and to take collective action to address corporate greed and other financial abuses. 

Although I do not question their passion or the merits of their grievances, there are several obvious differences between the Wall Street occupation and Arab Spring events: The ”Occupy Wall Street” protesters are few in number and seem to be dwindling already; their grievances and the target of their anger are far more diverse; their ability to occupy the contested space is less assured (in part because public protest has become part of our political process rather than a force from outside that process); and their broad public audience is less likely to be attentive or sympathetic to the central causes of the movement.  Although I think it’s a good thing that protesters are speaking out in public places about perceived financial and other abuses, I doubt that we will see an Arab Spring-style awakening on Wall Street.  That does not mean the effort is not worth it.  If things do not improve economically, we may not see the riots the Mayor fears.  But we may see more people in the streets.

Challenges to First Amendment exceptionalism and religious liberty norms will come from many sources and directions.  These include international treaties and multi-national agreements; transnational processes that bring American and foreign jurists and officials into more frequent contact with one another; judicial citation of and reliance upon foreign legal sources; enforcement of foreign judgments and religious principles in U.S. courts; and resolution of trans-national [...]]]> In my last post, I discussed some of the ways in which First Amendment norms and standards might be exported beyond our shores.  Of course, in a globalized and digitized world, constitutional norms and standards flow in many directions.  The bending of territorial borders may result in importation of foreign expressive and religious norms.  This transmission may pose a threat to America’s exceptional protection for freedom of speech as well as national norms regarding religious liberty. 

Challenges to First Amendment exceptionalism and religious liberty norms will come from many sources and directions.  These include international treaties and multi-national agreements; transnational processes that bring American and foreign jurists and officials into more frequent contact with one another; judicial citation of and reliance upon foreign legal sources; enforcement of foreign judgments and religious principles in U.S. courts; and resolution of trans-national speech conflicts that will arise as digitized expression is distributed in multiple sovereign territories at once.  In these and other respects, First Amendment norms and values will be in more frequent conflict and tension with foreign norms and values.

I do not suggest that any of these forces or events will ultimately dilute free speech exceptionalism or religious liberty within the U.S.  As Mark Tushnet has observed, globalization is not likely to lead to uniformity or global constitutional norms (whether derived from the First Amendment or from foreign sources).  Even if foreign speech norms could constitutionally be imported by treaty, in negotiations with other nations the U.S. remains steadfastly committed to resisting foreign speech norms and standards (through reservations and other mechanisms).  Further, American courts are unlikely to adopt free speech or press principles that are at sharp variance with longstanding doctrines.  But this does not mean that the forces of globalization, digitization, and internationalism can or will have no domestic effects in terms of expressive and religious liberties.  It may be politically, diplomatically, and otherwise possible to maintain parochial resistance to foreign speech and religious norms.  But ought that to be our posture?   

In the book, I will argue that our approach to the various transnational engagements and conflicts summarized above ought to be informed by cosmopolitan First Amendment and choice of law principles.  Although this part of the book, like others, is very much a work in progress, I intend to draw in particular on Vicki Jackson’s work on transnational constitutional engagement and Paul Berman’s cosmopolitan orientation with regard to conflicts of laws.  Thus, in this context, cosmopolitan First Amendment principles would encourage U.S. courts and officials to view the First Amendment as  situated in an interconnected system of expressive and religious regimes.  In very brief terms, First Amendment cosmopolitanism would acknowledge  the educational possibilities that attend transnational engagement, the benefts of comity in an international system, and the interests associated with diverse expressive and religious cultures and regimes across the globe.

I’ll offer more concrete observations in the book.  For example, under a cosmopolitan approach courts and officials would carefully assess the comparative merits of some of our exceptional free speech doctrines.  This does not necessarily mean that they  would, or should, change fundamental free speech principles or norms.  Indeed, our commitment to them may only be strengthened by the comparative process.  As Jackson points out, that is itself a benefit associated with transnational engagement.  Under the proposed cosmopolitan-pluralistic approach to conflicts among free speech regimes, it is certainly possible that French speech laws might be enforced with respect to domestic speech that has harmful extraterritorial effects, and that foreign libel and other judgments might sometimes be recognized by U.S. courts.  I do not see this as a substantial threat to First Amendment exceptionalism, by the way, but rather as proper recognition of and respect for foreign laws and legal sources.  Finally, in this context First Amendment cosmopolitanism would reject isolationist and xenophobic measures like Oklahoma’s “Save Our State Amendment,” which purports to deny recognition to foreign laws and Sharia principles.

Adoption of a more cosmopolitan approach to transnational speech and religious concerns does not portend dilution or demise insofar as First Amendment exceptionalism is concerned.  However, in an era of globalization, digitization, and internationalism foreign speech and religious norms will inevitably approach and in some cases traverse U.S. borders.  My claim is that First Amendment cosmopolitanism is better situated than the traditional strict territorial approach to address the unique concerns of this era.   

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 [...]]]> 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.     

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 [...]]]> 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.