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- Title
Speech Beyond Borders: Extraterritoriality and the First Amendment.
- Authors
Su, Anna
- Abstract
Does the First Amendment follow the flag? In Boumediene v. Bush, the Supreme Court categorically rejected the claim that constitutional rights do not apply at all to governmental actions taken against aliens located abroad. Instead, the Court made the application of such rights, the First Amendment presumably included, contingent on "objective factors and practical concerns." In addition, by affirming previous decisions, Boumediene also extended its functional test to cover even U.S. citizens, leaving them in a situation where they might be without any constitutional recourse for violations of their First Amendment rights. But lower courts have found in the recent case of USAID v. Alliance for Open Society ("USAID") an implication that free speech rights exist abroad, at least by U.S. registered entities or U.S. citizens. This Article resolves this doctrinal ambiguity, arguing courts should recognize that the First Amendment covers speech made beyond U.S. borders. It situates existing First Amendment precedents within the broader framework set by decisions pertaining to the Constitution's extraterritorial application and extends First Amendment coverage to both citizen and alien speech in cases where either speech has been subject to government regulation outside traditional national borders. Both conceptions of the First Amendment--either as a right that accrues to the individual or as a structural limitation against the government--support such an interpretation. But what are the implications of recognizing an extraterritorial First Amendment? In the last part of the Article, I compare and contrast the decisions in USAID and Holder v. Humanitarian Law Project to show the judicial weight given to the foreign policy considerations of the government.
- Subjects
UNITED States; EXTERRITORIALITY lawsuits; FREEDOM of speech; UNITED States. Constitution. 1st Amendment; BOUMEDIENE v. Bush; CIVIL rights; UNITED States. Supreme Court; LEGAL status of citizens; UNITED States. Agency for International Development; ACTIONS &; defenses (Law)
- Publication
Vanderbilt Law Review, 2014, Vol 67, Issue 5, p1373
- ISSN
0042-2533
- Publication type
Article