Territoriality and the First Amendment: Free Speech at - and beyond - Our Borders

INTRODUCTION I. THE TERRITORY FIRST AMENDMENT A. Territorial Exclusion--Ingress B. Travel Restrictions--Egress C. Commerce: Import and Export Controls 1. Trading with the Enemy 2. The Tariff Act and "Immoral" Materials 3. Border Searches and New Technologies: A First Amendment "Exception"? 4. Export Administration 5. Cross-Border Artistic and Educational Exchanges: The Beirut Agreement 6. Dissemination of Foreign "Propaganda" 7. Cross-Border Contacts and Associations II. THE EXTRATERRITORIAL FIRST AMENDMENT A. Regulating Foreign Speech B. Libel Tourism: Extraterritorial Application of New York Times Co. v. Sullivan C. Exporting First Amendment Values and Norms D. Does the First Amendment Follow the Flag? III. OUR LESS TERRITORIAL, AND MORE COSMOPOLITAN, FIRST AMENDMENT A. Soft Borders, Cross-Border Information Flow, and Sovereignty 1. Legal and Regulatory Liberalization 2. Digitization and Territoriality 3. Cross-Border Information Flow and "Interdependence Sovereignty" B. Expansion of the First Amendment's Territorial Domain 1. Exporting First Amendment Laws, Norms, and Standards 2. Extraterritoriality and the Negative First Amendment C. The Transnational First Amendment CONCLUSION INTRODUCTION For most of our nation's history, territorial borders have marked the First Amendment's legal, practical, and theoretical domain. Information flow, whether in the form of persons or materials, and crossborder regulatory schemes have been physical and tangible in nature. Regulatory power at the borders has been grounded in detention, exclusion, and search and seizure. Traditional First Amendment theories or justifications have generally assumed that the First Amendment is a wholly domestic concern, one generally impervious to events, laws, or persons outside U.S. borders. (1) Today, however, we live in a world characterized by extraordinary advances in communications technology, widespread global travel, increasing cross-border commerce, and frequent transnational involvements. Information flows at great speed, and in remarkable quantity, across our national borders. In a "flatter" world, a single speaker can potentially distribute information in digitized form to millions of people across the world with just a few strokes and clicks. (2) Millions of people can and do travel across international borders to associate with family members and others. (3) Journalists share and distribute information across the globe. (4) The United States, like other nations, participates in interterritorial agreements, tribunals, and processes. Today, the First Amendment increasingly competes and often conflicts with the speech, privacy, and association laws of other nations. (5) Globalization, digitization, and other modern forces fundamentally alter the premise that the First Amendment is solely or principally a domestic concern bounded by territory. The relationship between territory and the First Amendment has become more complicated. But what precisely is that relationship? In a digitized and globalized speech environment, to what extent can or does the United States continue to rely upon a territorially based regulatory model with respect to the cross-border flow of information? How "open" are our borders in terms of speech and association, both as a matter of law and, with the advent of the Web and other communications technologies, practically speaking? Is the First Amendment a set of domestic limitations or a universal human right that applies without regard to borders? Scholars have devoted far less effort to systematically analyzing the intersection of territorial borders and the First Amendment than they have to various domestic doctrines and concerns. …