First Amendment Cosmopolitanism

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2 Responses

  1. A.J. Sutter says:

    1. It would help if you would give some specific examples illustrating how cosmopolitanism would lead to a different result from the provincial approach.

    2. As far as I can recall, the enforcement of foreign judgments is a matter of comity. Why is rejecting the enforcement in the US of foreign judgments that don’t have certain protections for defendants “imperialistic”? Isn’t there a strong policy argument to be made for offering some safeguards here? In any case, I’m not clear why we should single out judgments that touch on First Amendment issues from foreign judgments in general. While the SPEECH Act removes judges’ discretion about the enforcement of certain foreign judgments, it seems to me that public policy grounds were already available to decline recognition of such judgments. Am I mistaken?

    (BTW I don’t think this should be coupled to the Oklahoma amendment, which is stupidly overbroad in any case. E.g., read literally, it would forbid recognizing a marriage in a foreign jurisdiction as valid, should marital status become relevant to an issue in a court case. The proscription against courts’ considering “international law” would also forbid recognizing the validity of treaties entered into between the United States and foreign nations. Query, too, whether this might impact treaties with certain Native American nations – probably not a minor issue in Oklahoma.)

    3. When you say “Citizens, and even aliens in some circumstances, would enjoy First Amendment liberties regardless of frontiers or location,” why isn’t that “imperialistic”? Suppose local laws in a foreign jurisdiction impose restrictions on free speech. Couldn’t a US court’s refusal to recognize the validity of those restrictions be considered “imperialistic”? Maybe the term is too two-edged to be useful in this context.

  2. Timothy Zick says:

    Thanks again, A.J., for your thoughtful comments. The broad goal of my project is to re-orient our thinking in terms of trans-border First Amendment concerns. This could result in different outcomes in decided cases. I think Holder v. HLP would have been decided differently under cosmopolitan principles. As well, some restrictions on foreign travel might violate cosmopolitan principles (foreign travel is currently protected as a weak liberty under the DPC rather than a strong right under the 1st Amendment). So might the ban on aliens’ contributions to political campaigns, some conditional spending measures that affect aliens, and even the search of laptops at the border. Many of the questions I discuss in the book are either unresolved or, as I said in my post, inadequately resolved. In addition to court challenges, cosmopolitanism would affect the manner in which policymakers approach issues ranging from Internet access and freedom to the conduct of foreign affairs.

    As for the SPEECH Act, one view is that it exports First Amendment standards by refusing to consider application of foreign libel standards. Among others, Mark Rosen’s piece on “Un-American Judgments” advances the argument that this is a form of rights imperialism. Prior to the enactment of the SPEECH Act, courts were indeed using the public policy exception to deny recognition to foreign libel judgments. But it’s not at all clear that this exception warrants a blanket refusal to recognize such judgments. I agree that the U.S. has a significant interest in protecting First Amendment values. The question is one of means. Under cosmopolitan conflicts and judgment recognition principles, a more pluralistic approach would apply. In many cases, the foreign libel judgment may still be refused recognition. But not in every case.

    I don’t view it as imperialistic to grant First Amendment protections to citizens abroad where their government is restricting expressive or religious liberties. Nor would it be imperialistic to grant aliens some First Amendmnet protections where their liberties are affected by application of U.S. policies abroad. My statement was not meant to suggest that foreign regimes could not apply their own speech laws, for example, to their citizens’ activities. The question is whether the U.S. ought to be constrained by First Amendment norms and standards when it acts abroad — i.e., does the First Amendment “follow the flag”?