Speech Beyond Borders: Extraterritoriality and the First Amendment
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.
Assistant Professor of Law, University of Toronto Faculty of Law; S.J.D., Harvard Law School (2013). Special thanks to Noah Feldman for the guidance and encouragement in writing this paper, Tim Zick for our extended correspondence, and Adam Shinar for the countless conversations on the topic. Many thanks to David Armitage, Or Bassok, Guyora Binder, Joseph Blocher, Jim Gardner, Rick Garnett, Paul Horwitz, Lisa Kelly, Duncan Kennedy, Jed Kroncke, Shay Lavie, Heidi Matthews, Zina Miller, Palma Paccioco, Ryan Scoville, Steven D. Smith, Chris Szabla, Kaja Tretjak, Mark Tushnet, the participants at the Harvard Law and SUNY Buffalo Law faculty workshops, and to the IACL Roundtable for Constitutional Responses to Terrorism for their helpful comments on various drafts. I am also grateful to Daniel Hay, Charles Jones, Courtney Mitchell, Jean Xiao, and other student editors at the Vanderbilt Law Review for their careful editing and insights. All remaining errors are mine.