The First Amendment in Trans-Border Perspective: Toward a More Cosmopolitan Orientation

IntroductionIn its 2010 decision Holder v. Humanitarian Law Project, the U.S. Supreme Court upheld a federal law that criminalizes citizens' peaceful political speech when it is "coordinated" with organizations that have been designated by the U.S. State Department as "foreign terrorist organizations."1 The Court reasoned that (1) Congress and the executive could punish such "material support" to terrorist groups because, insofar as such organizations are concerned, words and weapons are fungible commodities; (2) providing these organizations with knowledge about international law and peaceful dispute resolution mechanisms could backfire; and (3) speaking to or on behalf of the groups would only serve to legitimize them.2 As written, the law in question is broad enough to prohibit providing editorial space to the designated organizations' leaders in U.S. publications, collaborating with them on peacebuilding efforts in places like Afghanistan, and even filing an amicus brief on their behalf in U.S. and other courts.3 Under this law, it makes no difference whether the citizen intends to further the terrorist ends of the designated foreign organization or seeks only to encourage peaceful dialogue. The Court was careful to note that its decision did not suggest that domestic terrorist organizations could be similarly treated.4 Nevertheless, although the Court acknowledged that the law was a content-based regulation of citizens' peaceful political speech subject to heightened scrutiny, it upheld the law owing primarily to the foreign affairs and national security concerns expressed, if not proven, by Congress and the executive.5 The material support law now stands alone as the only content-based measure upheld by a majority of the Supreme Court.6Humanitarian Law Project is only the most recent precedent to treat First Amendment guarantees as rather provincial in the definitional sense that they are concerned primarily, if not exclusively, with domestic governance and other local democratic concerns.7 Under Supreme Court and lower court precedents, most dating from the post-war and Cold War periods, U.S. citizens: (1) have only a limited First Amendment right to receive and distribute foreign materials inside the United States,8 (2) may be denied personal access to foreign speakers for any "facially legitimate and bona fide" reason,9 (3) have merely a First Amendment "freedom" under the Due Process Clause to travel abroad for the purpose of gathering information about foreign cultures,10 (4) are understood by some courts not to have any First Amendment right to send communications to audiences abroad consisting solely of aliens, 11 (5) have only a limited right to associate with aliens located abroad,12 and (6) have no First Amendment right to access and distribute inside the United States propaganda materials disseminated by their government abroad.13 Moreover, no court has ever invalidated the Logan Act, a criminal statute dating from 1799 that bans citizens' unauthorized communications with foreign regimes and their principals,14 the ban on alien contributions in U.S. elections,15 or the federal requirement that certain U.S. institutions obtain a license prior to sharing certain scientific and technical information with aliens working in the United States.16 Under current First Amendment jurisprudence, there is no clear and unambiguous precedent holding that communications or associations that cross borders are protected in any meaningful way.Further, if the First Amendment speaks at all beyond U.S. borders, it does so with only the faintest voice. The Supreme Court has assumed, without ever deciding, that U.S. citizens possess free speech rights abroad.17 Some courts have rejected the free speech claims of citizens who traveled abroad to serve as "human shields" as a protest against foreign wars.18 Moreover, courts have not clearly resolved whether the First Amendment protects a right to receive information while abroad. …