Transborder Speech

Ronald J. Krotoszynski, Jr.*

In an increasingly globalized marketplace of ideas, First Amendment law and theory must recognize that the freedom of speech does not end at the water’s edge. Simply put, the locus of expressive activity should not prefigure the government’s ability to engage in censorship. Nevertheless, under current First Amendment law and practice, the accident of geography may serve as a constitutionally acceptable basis for content-based censorship of speech. If, as the Supreme Court argued with such ferocity in Citizens United, the value of speech to an audience does not depend on the speaker’s identity or motive for speaking, then by parity of constitutional logic, the locus of speech activity should be deemed no less irrelevant to its protected status under the First Amendment. After all, democratic deliberation, essential to the project of democratic self-government, requires that information, ideas, and ideologies should be able to circulate freely among and between voters in order to ensure that, to borrow a phrase from the iconic free speech theorist Alexander Meiklejohn, “everything worth saying shall be said.”¹ The foreign or domestic origin of speech and speakers alike cannot serve as a constitutionally permissible basis for government censorship of speech because, as Meiklejohn explained, “[t]o be afraid of ideas, any idea, is to be unfit for self-government.”²

The Warren Court pioneered the application of the First Amendment to protect transborder speech (meaning speech that involves ideas, information, and speakers crossing national boundaries). To be sure, the Warren Court’s decisions were not particularly robust—yet they plainly recognized that the value of speech to the electorate is simply not a function of its domestic or foreign origin. The Burger Court never overruled these Warren Court precedents—but it declined to expand on them. By way of contrast, however, the Rehnquist and Roberts Courts have declined to apply the First Amendment at full strength to transborder speech activities—and arguably have resiled from the Warren Court precedents that protected transnational information flows from government censorship. If the Supreme Court’s efforts to prohibit the government from distorting the political marketplace of ideas reflect a meaningful and serious jurisprudential commitment—rather than a merely rhetorical one—a significant course correction is both needed and long overdue. In sum, a free and open marketplace of political ideas requires that transborder speech not constitute a poor relation of its healthier, more robust domestic first cousin.

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© 2018 Ronald J. Krotoszynski, Jr. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*John S. Stone Chair, Professor of Law, and Director of Faculty Research, University of Alabama Hugh F. Culverhouse, Jr. School of Law. With thanks and appreciation to Professors Ash Bhagwat, Scott Dodson, RonNell Andersen Jones, Aziz Huq, Steven Shiffrin, David Sloss, Gary Spitko, David Super, Christina Wells, and Timothy Zick for offering thoughtful and perceptive comments and suggestions on an earlier iteration of this Article. In addition, the author wishes to express his thanks and appreciation to the law faculties at the University of California-Hastings College of Law, the Cornell University School of Law, the Santa Clara University School of Law, and the University of Texas School of Law for hosting faculty workshops focused on this chapter and on my larger book-length project, The Disappearing First Amendment (forthcoming Cambridge University Press 2019). The usual disclaimer applies with full force: any errors or omissions are the sole responsibility of the author.

1 Alexander Meiklejohn, Free Speech and its Relation to Self-Government 25 (1948).

2 Id. at 27.