49 Pages Posted: 6 Feb 2019
Date Written: 2018
In an increasingly globalized marketplace of ideas, First Amendment theory and practice must recognize that the freedom of speech does not end at the water’s edge. The foreign or domestic origin of speech and speakers alike cannot serve as a constitutionally permissible basis for government censorship of speech because, as Alexander Meiklejohn explained, “[t]o be afraid of ideas, any idea, is to be unfit for self-government.” Thus, the locus of expressive activity should not prefigure the government’s ability to engage in censorship. Nevertheless, under current First Amendment law and practice, the accident of geography can and does serve as a constitutionally acceptable basis for content-based censorship of speech. Citizens United’s robust theory of audience autonomy rests in considerable tension with the Supreme Court’s abject deference to the government’s content-based speech ban in Humanitarian Law Project. This Article argues that this tension should be resolved by reliably affording transborder speech activity full and robust First Amendment protection.
Transborder Speech constitutes part of a longer, book-length project, The Disappearing First Amendment, which Cambridge University Press will be publishing in 2019. The book will show how, in a variety of important contexts, free speech rights have contracted, rather than expanded, under the Rehnquist and Roberts Courts. Salient examples include First Amendment protection for transborder speech, as well as the speech rights of government employees, access to public property for expressive activities, the speech rights of students and educators, and news gathering and reporting activities. The book posits that antipathy toward judicial discretion in free speech cases provides a partial explanation for the contemporary Supreme Court’s inconsistent protection of First Amendment rights, as does a more general willingness to tether First Amendment rights to the ownership of property.
Keywords: First Amendment, free speech, Citizen's United, Humanitarian Law Project, Lamont, Meiklejohn, democracy, democratic deliberation, transborder, audience autonomy, political speech, foreign speakers, internet, global information, marketplace of ideas, Mandel, foreign government speech, elections,
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