Document Type

Working Paper

Publication Date

2-6-2019

SSRN Discipline

Legal Scholarship Network; Law School Research Papers - Legal Studies; Law & Society eJournals; Law & Society: Public Law eJournals; Legal Anthropology eJournals; LSN Subject Matter eJournals; AARN Subject Matter eJournals; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; Political Science Network; Anthropology & Archaeology Research Network

Abstract

In an increasingly globalized marketplace of ideas First Amendment theory and practice must recognize that the freedom of speech does not end at the water's edge The foreign or domestic origin of speech and speakers alike cannot serve as a constitutionally permissible basis for government censorship of speech because as Alexander Meiklejohn explained "to be afraid of ideas any idea is to be unfit for selfgovernment" Thus 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 can and does serve as a constitutionally acceptable basis for contentbased censorship of speech Citizens United's robust theory of audience autonomy rests in considerable tension with the Supreme Court's abject deference to the government's contentbased speech ban in Humanitarian Law Project This Article argues that this tension should be resolved by reliably affording transborder speech activity full and robust First Amendment protectionbrbrTransborder Speech constitutes part of a longer booklength project The Disappearing First Amendment which Cambridge University Press will be publishing in 2019 The book will show how in a variety of important contexts free speech rights have contracted rather than expanded under the Rehnquist and Roberts Courts Salient examples include First Amendment protection for transborder speech as well as the speech rights of government employees access to public property for expressive activities the speech rights of students and educators and news gathering and reporting activities The book posits that antipathy toward judicial discretion in free speech cases provides a partial explanation for the contemporary Supreme Court's inconsistent protection of First Amendment rights as does a more general willingness to tether First Amendment rights to the ownership of property

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