The Limits of the First Amendment: Protecting American Citizens’ Free Speech in the Era of the Internet & the Global Marketplace of Ideas
52 Pages Posted: 2 Apr 2016
Date Written: March 31, 2016
The number of countries that limit speech that would likely be protected under the US First Amendment has recently increased. On the other hand new information technology is making speech made in the United States by an American citizen accessible outside the United States, exposing the speaker to consequences for violating the free speech limitations set in international law or the domestic laws of other countries. These Americans are therefore often forced to make a difficult choice: exercise in the US their free speech as guaranteed by the US First Amendment and potentially expose themselves to prosecution and other legal consequences overseas, or accept those free speech limitations to avoid the consequences of violating them.
This Article argues that the US recourse to reservation and refusal to ratify treaties that limit free speech may not be enough in today’s era of globalization, information technology, and free movement of people. This approach may shelter the United States from its international human rights obligations, but it does not provide US citizens protection in countries that have incorporated these treaties into their domestic law. Also the use of diplomacy to free American victims of such limitations is not sustainable. The Article advocates rather for the United States to adopt an international relations free speech strategy that starts from the recognition that free speech is not absolute, rather than focusing on the slippery slope argument of free speech limitation. From this recognition, the United States could lead other countries in developing better standards in defining protected and unprotected speech, and thus ensure her citizens better free speech protection overseas.
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