This excerpt from “Falsely Shouting Fire in a Global Theater: Emerging Complexities of Trans-Border Expression” by Professor Timothy Zick is forthcoming from Vanderbilt Law Review in 2012.
Justice Holmes once stated that “[t]he most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” As recent events have demonstrated, the geographic contours of that theater have expanded beyond U.S. territorial borders. Owing to globalization, digitization of expression, and other forces the world has become increasingly interconnected. The global soapbox the Supreme Court alluded to in 1997, when striking down Congress’s first attempt to restrict speech on the Internet, has now materialized in the United States and abroad. Speakers’ voices and the physical and psychological effects of domestic expressive activities now frequently traverse or transcend territorial borders.
As Holmes indicated in the same passage quoted above, “the character of every act depends upon the circumstances in which it is done.” Consider in that light the circumstances of the following recent events, which highlight some of the First Amendment complexities associated with the emerging global theater:
* A pastor from Gainesville, Florida threatened to burn copies of the Koran to mark the anniversary of the September 11, 2001 terrorist attacks. As a result President Obama, among other high-level officials, called on the pastor to desist. Several people in Afghanistan, who had heard of the pastor’s plans, protested and were killed during riots. When the pastor later followed through and burned a copy of the Koran, several more people died in ensuing riots.
* A cartoonist in the United States went into hiding after she received foreign death threats as a result of a posting on the Web that urged readers to participate in “Everybody Draw Mohammed Day.”
* As a result of a recent Supreme Court ruling, United States citizens who file petitions with the United Nations on behalf of, provided legal training to, or even post material on the Web praising designated “foreign terrorist organizations” may be prosecuted under federal laws prohibiting the provision of “material support” to terrorists and could also be subject to prosecution for treason.
* After a radical Muslim cleric who is a citizen of the United States but was residing in Yemen posted several videos and speeches on the Internet in which he praised and encouraged terrorists to attack in the United States and abroad, YouTube removed some of the cleric’s videos from its site and the Obama Administration targeted him for execution. (The cleric was recently killed in a drone strike.)
* After the publisher of the foreign website WikiLeaks shared with several Western news outlets and posted on the Internet classified documents concerning American military operations in Iraq and Afghanistan and American diplomatic cables, United States officials suggested that he should be treated as a terrorist or prosecuted under the Espionage Act of 1917.
As the proposed Koran burning episode shows, domestic speech can have instantaneous and even deadly international effects. Further, as the Seattle cartoonist learned, United States residents who post messages on the Internet must now consider not only the possibility of domestic hecklers but foreign ones as well. In the emerging global theater, speech and association that originates inside the United States but crosses territorial borders may lead to violence in distant locations, upset delicate foreign policy objectives and relationships, and aid foreign enemies. All of this may occur without the speaker ever departing his location or even leaving his desk. Foreign speakers, including United States citizens traveling or residing abroad, may direct enemy-aiding expression to all corners of the globe via the Internet. Finally, as the WikiLeaks episode demonstrates, once confidential state information has leaked across territorial borders, efforts to control its global distribution will prove substantially more difficult, if not futile.
Traditional First Amendment doctrines and jurisprudence did not develop in a global theater. Rather, they developed in a domestic sphere in which expression and its effects stayed largely within territorial borders. The distribution of potentially harmful expression in the global theater raises important and unresolved questions. Can a domestic speaker be prosecuted for inciting a riot half a world away? If the answer depends, as Justice Holmes indicated, on matters of “proximity and degree,” how should courts and commentators analyze those characteristics in the twenty-first century’s digital age? If speakers located in the United States can be chilled by hecklers located thousands of miles away, what are the implications for domestic speech marketplaces and the ability of citizens to communicate via global networks? Are citizens who merely advocate terrorism or support terrorist organizations by publishing favorable commentary about them on the Web subject to criminal prosecution for providing material support to terrorists, or for treason?1 To what extent will citizens’ First Amendment liberties actually be protected when they speak from distant locations? Are foreign publishers subject to United States espionage and other national security laws? If so, might they also be protected by the First Amendment’s free speech and press guarantees?
We will have to grapple with these and other questions in the emerging global theater. More broadly, we will have to pay much closer attention to the First Amendment’s relationship to trans-border expression. In the emerging global theater, longstanding domestic commitments to marketplace and counter-speech principles, as well as old-fashioned principles of speaker fortitude, will be severely tested. Legal and constitutional conceptions – i.e., incitement, hostile audiences, treason, and terrorism – must be considered in light of and in some cases adapted to the unique circumstances of the global theater. Further, regulatory challenges presented by the trans-border distribution of potentially harmful expression will test the government’s commitments to freedoms of speech and press, and to the rule of law. As the potential harm from trans-border speech and association increases, governments will seek new means of control. New forms of speech regulation, censorship, and civil disobedience will arise in the emerging global theater. This Article examines some of the constitutional and regulatory complexities that have begun to arise in the emerging global theater.