William and Mary Law School

An Excerpt from Territoriality and the First Amendment by Professor Tim Zick

This excerpt from “Territoriality and the First Amendment: Free Speech at – and Beyond – Our Borders” by Professor Timothy Zick was published in Notre Dame Law Review in June 2010. To read the full article, please click here.

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 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 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.

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. Millions of people can and do travel across international borders to associate with family members and others. Journalists share and distribute *1545 information across the globe. 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. 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. What is immediately apparent is that we do not have a single, 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 association within U.S. territorial borders and in U.S. territories. There is substantial intraterritorial uniformity with regard to speech and association 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 enjoy lesser First Amendment rights in certain circumstances than citizens, different community norms may be used to assess whether sexually explicit speech is obscene, and some states provide for more robust speech rights than the First Amendment mandates as a floor. 

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 deference 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 principles, standards, and norms. Is the First Amendment merely a domestic 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 Amendment are important and sometimes overlap with other territorial concerns, 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 equivalents. As we shall see, the formal core of the territorial First Amendment has remained remarkably stable over time. Today, as in the past, foreign scholars and other speakers have no constitutional right to cross U.S. borders to convey information or associate with U.S. audiences. The government may deny access to foreign speakers so long as it has a “facially legitimate and bona fide reason” for doing so. Current federal laws and regulations may also permit officials to exclude foreign speakers on solely ideological grounds, a feature of cross-border information control that dates to the late 1790s. Moreover, federal law prohibits foreign nationals from making direct contributions in U.S. elections and limits distribution of “foreign political propaganda” inside the United States.

Citizens’ cross-border speech is also limited in various respects. For example, the Logan Act, enacted in 1799, criminalizes unauthorized “correspondence or intercourse” with foreign governments. Although international travel is now commonplace, federal laws and regulations still place restrictions on travel to certain areas of the world. Federal law now prohibits denial or revocation of a passport based upon ideological or expressive grounds. But the First Amendment does not proscribe restrictions on territorial egress even if the purpose of the proposed travel is to engage in expressive, journalistic, or associative activities.

At U.S. territorial borders, federal officials retain broad authority to search expressive materials. Prior to and during the Cold War, customs and border laws were enforced to restrict or prohibit the importation and exportation of films, books, and magazines. For a variety of reasons, the regulatory focus has shifted to the cross-border flow of technological data and information, particularly as these relate to materials that may have military applications. Broad customs authority has been extended to laptops and other computing devices which are filled with personal data and other expressive materials, such as medical records, diaries, and photographs. Courts have refused to apply a First Amendment “exception” to these border searches. Finally, various laws restrict the ability of U.S. citizens and resident aliens to maintain contact and associate, both domestically and abroad, with foreign missions and other organizations.

Although the core of the territorial First Amendment remains largely intact, territorial borders are not the strong regulatory barriers to cross-border information flow that they once were. In the mid-1980s, some were bemoaning the existence of a “nylon curtain” of federal laws and regulations that operated as an ideological barrier at the nation’s borders. During the past two decades or so, territorial borders have been transformed from relatively hard to much softer barriers. As we shall see, although the courts have played some role in terms of territorial liberalization, the most important actors have been legislative and executive officials. Formal ideological barriers, in particular, have nearly disappeared. More generally, legal and regulatory amendments have facilitated the cross-border flow of a variety of informational materials. The gradual lifting of travel barriers has also increased cross-border association and inquiry. In addition to various legal and regulatory changes, digitization and globalization have fundamentally changed the practice and governance of cross-border information flow. In combination, these legal and social forces have altered the territorial framework that has traditionally governed speech, press, and associational liberties. Although we do not have open borders insofar as information flow is concerned, the First Amendment is far less territorial than perhaps at any time in our nation’s history.