The First Amendment in Trans-Border Perspective: Toward a More Cosmopolitan Orientation
William & Mary Law School
January 10, 2011
Boston College Law Review, Vol. 52
William & Mary Law School Research Paper No. 09-65
This Article examines the First Amendment’s critical trans-border dimension - its application to speech, association, press and religious activities that cross or occur beyond territorial borders. Judicial and scholarly analysis of this aspect of the First Amendment has been limited, at least as compared to consideration of more domestic or purely local concerns. The Article identifies two basic orientations with respect to the First Amendment - the provincial and the cosmopolitan. The provincial orientation, which is the traditional account, generally views the First Amendment rather narrowly - i.e., as a collection of local liberties or a set of limitations on domestic governance. First Amendment provincialism does not fully embrace or protect trans-border speech, press and religious activities, views certain foreign ideas, influences, and ideologies with suspicion or hostility, and envisions a rather minimal extraterritorial domain. First Amendment cosmopolitanism, which the Article offers as an alternative orientation, takes a more global perspective. It embraces and protects cross-border exchange and information flow; preserves citizens’ speech and other First Amendment interests at home and abroad, while at the same time respecting foreign expressive and religious cultures; and expands the First Amendment’s extraterritorial domain. The Article critiques provincialism on various grounds. It offers a normative defense of First Amendment cosmopolitanism, which is both consistent with traditional First Amendment principles and better suited to twenty-first century conditions and concerns. The Article demonstrates how a more cosmopolitan approach would concretely affect trans-border speech, association, press and religious liberties.
Number of Pages in PDF File: 87
Keywords: speech, first amendment, territory, territoriality, cosmopolitanism, cosmopolitan, provincialism, establishment, free exercise, sovereignty, human rightsAccepted Paper Series
Date posted: January 11, 2011 ; Last revised: July 22, 2011
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