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Territoriality and the First Amendment: Free Speech at - and Beyond - Our Borders Timothy Zick William & Mary Law School, [email protected]

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Territoriality and the First Amendment: Free Speech at - and Beyond - Our Borders Timothy Zick William & Mary Law School, Tzick@Wm.Edu College of William & Mary Law School William & Mary Law School Scholarship Repository Faculty Publications Faculty and Deans 2010 Territoriality and the First Amendment: Free Speech At - And Beyond - Our Borders Timothy Zick William & Mary Law School, [email protected] Repository Citation Zick, Timothy, "Territoriality and the First Amendment: Free Speech At - And Beyond - Our Borders" (2010). Faculty Publications. 821. https://scholarship.law.wm.edu/facpubs/821 Copyright c 2010 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/facpubs TERRITORIALITY AND THE FIRST AMENDMENT: FREE SPEECH AT-AND BEYOND­ OUR BORDERS Timothy Zick* INTRODUCTION . • . • . 1544 I. THE TERRITORIAL FIRST AMENDMENT ...................... 1550 A. Territorial Exclusion-Ingress........................... 1551 B. Travel Restrictions-Egress . 1557 C. Commerce: Import and Export Controls................... 1563 1. Trading with the Enemy . 1563 2. The Tariff Act and "Immoral" Materials . 1566 3. Border Searches and New Technologies: A First Amendment "Exception"? . 1567 4. Export Administration ........................... 1570 5. Cross-Border Artistic and Educational Exchanges: The Beirut Agreement . 1574 6. Dissemination of Foreign "Propaganda" . 1576 7. Cross-Border Contacts and Associations........... 1577 II. THE ExTRATERRITORIAL FIRST AMENDMENT ..........•..•.. 1579 A. Regulating Foreign Speech .............................. 1580 B. Libel Tourism: Extraterritorial Application of New York Times Co. v. Sullivan. 1585 C. Exporting First Amendment Values and Norms ............ 1589 D. Does the First Amendment Follow the Flag? . 1592 III. OuR LEss TERRITORIAL, AND MoRE CosMOPOLITAN, FIRST AMENDMENT ............................................. 1598 A. Soft Borders, Cross-Border Information Flow, and Sovereignty 1599 1. Legal and Regulatory Liberalization . 1599 2. Digitization and Territoriality...... 1602 © 2010 Timothy Zick. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format, at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision and copyright notice. * Professor of Law, William & Mary Law School. I would like to thank Rob Poggenklass for his excellent research assistance. 1 543 1 544 NOTRE DAME LAW REVIEW [VOL. 85:4 3. Cross-Border Information Flow and "Interdependence Sovereignty"................... 1606 B. Expansion of the First Amendment's Territorial Domain.... 1608 1. Exporting First Amendment Laws, Norms, and Standards..... 1609 2. Extraterritoriality and the Negative First Amendment . 1612 C. The Transnational First Amendment..................... 1621 CoNCLUSION .................................................... 1627 INTRODUCTION For most of our nation's history, territorial borders have marked the First Amendment's legal, practical, and theoretical domain. Infor­ mation flow, whether in the form of persons or materials, and cross­ border 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 the­ ories or justifications have generally assumed that the First Amend­ ment 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 mil­ lions 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 dis- I See, e.g., Robert D. Kamenshine, Embargoes on Exports of Ideas and Information: First Amendment Issues, 26 WM. & MARv L. REv. 863, 865 (1985) ("Most discussions of first amendment rights assume that the communication is addressed to a domestic audience or at least assume that the domestic or foreign nature of the audience is inconsequential."). 2 See generally THOMAS L. FRIEDMAN, THE WoRLD Is FLAT (2007) (describing how globalization, fueled by technology, has led to an increasingly interconnected world). 3 In 2008, the U.S. Department of State estimated that sixty-four million trips were taken overseas by U.S. citizens. U.S. Gov'T AccoUNTABILI1Y OFFICE, Doc. No. GA0-09-989, WIDE RANGE OF EMERGENCY SERVICES PROVIDED TO AMERICAN CITIZENS OVERSEAS, BuT IMPROVED MoNITORING Is NEEDED I, (2009), available at http://www. gao.gov/new.items/d09989.pdf. 2010] TERRITORIALITY AND THE FIRST AMENDMENT 1 545 tribute 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 funda­ mentally alter the premise that the First Amendment is solely or prin­ cipally 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 reg­ ulatory 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 commu­ nications 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 sys­ tematically analyzing the intersection of territorial borders and the First Amendment than they have to various domestic doctrines and concerns. What is immediately apparent is that we do not have a sin­ gle, unitary First Amendment. Rather, we have at least three First Amendments: the intraterritorial, the territorial, and the extraterritorial. The intraterritorial First Amendment affects speech and associa­ tion within U.S. territorial borders and in U.S. territories. There is substantial intraterritorial uniformity with regard to speech and associ­ ation rights, owing in part to the supremacy of the First Amendment. But inside the United States and its territories, speech and association rights still vary depending on one's status and geographic location. For instance, noncitizens may e~oy lesser First Amendment rights in certain circumstances than citizens,6 different community norms may 4 See generally LEE C. BoLLINGER, UNINHIBITED, RosusT, AND WIDE-OPEN: A FREE PREss FOR A NEw CENTURY 68-107 (2010) (discussing the future of the press and free­ dom of speech in today's era of "new technologies of communication and globalization"). 5 See, e.g., john Schwartz, Two German Killers Demanding Anonymity Sue Wikipedia's Parent, N.Y. TIMEs, Nov. 13, 2009, at A13 (reporting that German ex-convicts' attempt to enforce a German privacy law against a U.S. business conflicts with the First Amendment). 6 See, e.g., Harisiades v. Shaughnessy, 342 U.S. 580, 591-92 (1952) (rejecting Fifth and First Amendment challenges of resident aliens deported on the ground that they had once been members of the Communist Party). NOTRE DAME LAW REVIEW (VOL. 85:4 be used to assess whether sexually explicit speech is obscene,7 and some states provide for more robust speech rights than the First Amendment mandates as a floor.8 The territorial First Amendment refers to the vast regulatory scheme that affects cross-border speech and association. With whom may American speakers legally interact? What information may they share across territorial borders? What may foreign speakers convey across our borders? The contours of the territorial First Amendment are shaped by national security concerns, the federal government's plenary powers with regard to immigration and customs, and the def­ erence generally given by courts to the national government's exercise of foreign relations powers. Simply put, the First Amendment has long operated very differently at the nation's borders. Finally, the extraterritorial First Amendment refers to application of First Amendment restrictions outside U.S. territorial borders and the scope or domain of speech-protective First Amendment princi­ ples, standards, and norms. Is the First Amendment merely a domes­ tic limitation, or is it a universal human right? Does the First Amendment follow the flag, or stop at the water's edge? Although the issues raised by the intraterritorial First Amend­ ment are important and sometimes overlap with other territorial con­ cerns, this Article will focus primarily on the territorial and extraterritorial First Amendments. The primary concern will be the legislative, executive, and judicial treatment of what might generally be referred to as the First Amendment's "non-domestic" dimension. Part I examines the territorial First Amendment, which defines the legal scope of speech and associational liberties at international borders and their functional
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