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Falsely Shouting Fire in a Global Theater: Emerging Complexities of Transborder Expression

Posted by on Tuesday, January 31, 2012 in Articles, Volume 65, Volume 65, Number 1, Volumes.

We have entered an era in which potentially harmful expression can be distributed around the world in an instant. In the emerging global theater, speakers and audiences are connected through new and proliferating media; communicative space and time are compressed to an extraordinary degree; domestic expression can implicate national security and foreign affairs concerns; and a new model of global information dissemination is developing in which speakers are sometimes located beyond the jurisdiction of nations that may be harmed by their communications and disclosures.

This Article examines the First Amendment complexities associated with the dissemination of potentially harmful information in the global theater. These complexities include global dissemination of offensive expression, incitement to unlawful activities abroad, enemy-aiding expression that crosses territorial borders, and global free press concerns. The author argues that traditional First Amendment doctrines and principles ought generally to apply in the global theater. Reliance on marketplace and self-governance principles, application of speech-protective incitement standards, and continued support for an expansive and robust conception of press freedoms will preserve transborder First Amendment liberties in the digital era and allow the global theater to develop and mature. The author urges government officials not to react to potentially dangerous global theater expression by adopting new restrictions on transborder expressive and associational activities; creating new criminal offenses that inhibit transborder information flow; establishing broad penalties relating to transborder commingling and association; resorting to extrajudicial and potentially extralegal penalties for dangerous speakers; or imposing new limits on press freedoms.

In addition to these specific First Amendment issues, the Article also discusses several broader concerns relating to the development of the global theater. The author contends that in the global theater era, it will be critically important to the protection of speech and press liberties that officials and courts act with due regard for the First Amendment’s transborder dimension. Moreover, in the global theater, First Amendment justifications should be interpreted to encompass global information flow, cross-border collaboration, and the global spread of democratic principles. More attention must also be paid to the unique legal, professional, ethical, and identity challenges the press will face in the global theater. Finally, the author urges that more careful legal and scholarly attention be given to new restrictions on global information flow, including actions of private intermediaries and nonconventional forms of government censorship.