My book, The Cosmopolitan First Amendment, will propose that we have not one, but three, First Amendments. The intra-territorial First Amendment is the most familiar of these. It encompasses expressive and religious activities that occur within the territorial borders of the U.S. The territorial First Amendment’s domain encompasses expressive and religious activities that intersect with the nation’s territorial borders. Finally, the extra-territorial First Amendment operates beyond our shores.
My project focuses on the latter two — territorial and extra-territorial — First Amendments. This is the First Amendment’s trans-border dimension. In this post, I want to highlight some of the activities and issues that are implicated in a study of this dimension.
Within the trans-border dimension, U.S. citizens cross international borders for purposes of information-gathering, protest, or missionary work; publish communications and information while in foreign lands; communicate and associate with aliens, including foreign leaders, who are located abroad; and seek access to materials and information distributed abroad (including national propaganda). U.S. officials seek to regulate these and other trans-border activities, engage in extensive communications of their own in foreign lands and forums, and fund sectarian projects abroad. As well, as they long have, state and local governments continue to play some role in foreign affairs and foreign relations forums and dialogues.
Aliens are also present and active in the First Amendment’s trans-border dimension. They seek entry to the United States for purposes of academic, artistic, and other forms of exchange; may wish to contribute resources to and participate in American political campaigns; are subject to U.S. spending conditions while communicating abroad; attempt to have foreign libel and other judgments enforced in U.S. courts; and distribute information across international borders that could be harmful to American interests at home and abroad. Moreover, foreign regimes (courts and other government institutions) are pressing to have their own laws applied to domestic speech and other activities by U.S. citizens. Multi-jurisdictional speech conflicts have become more frequent as speech has migrated to the Web.
There are a number of unanswered or, at least to my mind, inadequately resolved First Amendment issues in this dimension. Read More