INTRODUCTION: TRANSBORDER SPEECH, DEMOCRATIC SELF-GOVERNMENT, AND THE GLOBALIZED MARKETPLACE OF POLITICAL IDEAS
This Article considers an important, but largely overlooked and underappreciated, subset of First Amendment activity: transborder speech. Trans-border speech involves the exercise of freedom of speech, assembly, association, press and petition across national borders; it relates to the global information flows of people, ideas, knowledge, and argument. Simply put, in the age of the internet, the marketplace of ideas does not respect national boundaries. (3) Even though transborder speech constitutes an increasingly important aspect of expressive freedom, it enjoys considerably less protection than purely domestic speech activity. (4)
If the value of information and ideas is not a function of its source, as the Supreme Court explained with great force in Citizens United v. Federal Election Commission, (5) then it necessarily follows, as a matter of constitutional logic, that the locus of speech activity should be equally irrelevant to ascertaining the value of particular speech to the marketplace of ideas--or to the process of democratic self-government. (6) Professor Timothy Zick argues that we "ought to treat American citizens' rights to engage in speech, assembly, petition, and press as fully portable." (7) Nevertheless, as Professors Burt Neuborne and Steven R. Shapiro observed in 1985, "[r]ecent case law hardly encourages optimism about the prospects for close judicial scrutiny of impediments to the flow of information and ideas across the national border." (8) Moreover, from the vantage point of the Reagan era, "the trend probably points in the opposite direction." (9) Subsequent judicial developments have entirely borne out this baleful prediction.
As this Article will explain in some detail, transborder speech has never enjoyed a strong claim on the First Amendment. Moreover, despite its merely modest protection under the Warren Court, the protection of transborder speech has declined, rather than increased, over time. Even as the Rehnquist and Roberts Courts have radically expanded the protection afforded to domestic speech activity, (10) transborder speech has remained something of a First Amendment orphan.
The Warren Court pioneered the constitutional protection of transborder speech, affording such speech tentative, modest protection. (11) The Burger Court halted the further extension of First Amendment protection for transborder speech activity, but did not overrule the relevant Warren Court precedents. (12) The Rehnquist and Roberts Courts, on the other hand, effectively have resiled from the modest protection afforded to transborder speech under the Warren Court. (13)
In the age of the internet, national boundaries should not impede the free flow of information and ideas. Yet, as Neuborne and Shapiro observe, "America's border has been permitted to evolve into a discernible impediment to the free flow of ideas." (14) The fact that speech crosses a border should not affect its status under the First Amendment. No necessary relationship exists between the geographic origin of speech or a speaker and its potential utility to the project of democratic self-government. (15)
Professor Zick, one of the few contemporary legal scholars to consider the application of the First Amendment to transborder speech in a comprehensive and sustained fashion, (16) argues that "U.S. citizens ought to enjoy protection for free speech, press, assembly, and petition rights without regard to frontiers or borders." (17) Yet, in the United States and elsewhere, governments routinely use the accident of geography as a basis for regulating--or even proscribing entirely--speech activity that would enjoy robust constitutional protection but for its transborder characteristic. In the contemporary United States, federal laws and regulations use control over the border to suppress speech activity that the national government deems inimical to its diplomatic, military, and national security interests. (18) For the most part, and for reasons that the Supreme Court has never fully explained or justified, crossing the nation's borders provides a sound basis for disregarding the First Amendment's strictures. (19)
To provide one concrete example of the problem, consider that the ability of foreign speakers to enter the United States--and the ability of U.S. citizens to travel abroad in order to inform themselves about issues of central importance to matters of public concern in the United States--are subject to pervasive regulation and control. Moreover, these controls can be used, and are used, to engage in viewpoint- and content-based censorship of speech. (20) Holder v. Humanitarian Law Project sustained a flat ban on any contact with foreign organizations listed on a State Department terrorist group watch list. (21) The Humanitarian Law Project (HLP) sought to teach peaceful dispute resolution techniques, and principles of international law, to Kurdish rebels (members of the Partiya Karkeran Kurdistan (PKK)). (22) The Supreme Court sustained the federal government's criminal ban on this entirely peaceful, nonviolent, speech and associational activity. (23) Chief Justice John Roberts explained that "in regulating the particular forms of support that plaintiffs seek to provide to foreign terrorist organizations, Congress has pursued that objective [national security] consistent with the limitations of the First and Fifth Amendments." (24)
Humanitarian Law Project raises very troubling questions about the rigor with which the First Amendment will be applied in circumstances where U.S. citizens seek to exercise First Amendment freedoms outside the United States. (25) As Professor David Cole has observed, "[f]or the first time in its history, the Court upheld the criminalization of speech advocating only nonviolent, lawful ends on the ground that such speech might unintentionally assist a third party in criminal wrongdoing." (26) In an increasingly globalized marketplace of ideas, we need to ensure that First Amendment rights do 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, yet good evidence exists that this is not really the case under current First Amendment law and doctrine. (27)
This Article also considers the problems presented by national security-based surveillance programs aimed at preventing crime. Many of these programs, such as those created under the Foreign Intelligence Surveillance Act, (28) use the transborder nature of communications as a basis for engaging in surveillance of electronic communications without any individualized showing that a particular person's electronic communications might relate in some way to unlawful activities. (29)
Pervasive forms of surveillance have a predictable and significant chilling effect; simply put, surveillance programs based on big data present serious threats to vibrancy of the marketplace of ideas. (30) As Professor Neil Richards observes, "[s]hadowy regimes of surveillance corrode the constitutional commitment to intellectual freedom that lies at the heart of most theories of political freedom in a democracy." (31) Nevertheless, the federal courts have been very reticent to apply First Amendment values to these national security programs that use the accident of crossing a national border as a basis for justifying comprehensive data collection--particularly in the face of a widely held perception that the risk of terroristic attacks is both real and growing. (32)
National security efforts, such as the PRISM program (33) and other similar activities sanctioned by section 215 of the Patriot Act, (34) present some very serious risks to the exercise of expressive freedoms. A surveillance state may be many things, but it is not likely to be a successful democracy. Surveillance produces a significant chilling effect that impedes democratic discourse--something that the Court of Justice of the European Union noted in its landmark Digital Rights Ireland decision. (35) Surveillance can and does function as a powerful tool for social control; programs like PRISM seriously burden the exercise of expressive freedom by incenting self-censorship. (36)
Despite the risks to democratic self-government that mass surveillance programs present, the Roberts Court has refused to even consider the constitutional status of such programs on the merits, finding that U.S. citizens who generally engage in telecommunications activities with people and institutions located abroad lacked Article III standing to challenge the constitutionality of these mass surveillance programs because there was no present injury. (37) Because the federal government does not officially acknowledge even the existence of some of these programs, much less provide a database of persons whose electronic communications have been recorded and stored, it is not possible for a would-be plaintiff to establish that her communications have been surveilled. In the absence of discovery, it is quite impossible for a would-be plaintiff seeking judicial review of these programs to prove that Big Brother has been watching and listening to her communications.
Yet, in Clapper v. Amnesty International USA, the Supreme Court held that the inability to assert with something approaching certainty the fact of government surveillance means that a would-be plaintiff lacks a concrete and particularized injury in fact sufficient to establish constitutional standing. (38) In consequence, mass surveillance programs that target transborder communications operate free and clear of judicial review. The First Amendment obviously cannot constrain the government's spying on its citizens if the federal courts refuse to apply it.
The fact that many of these mass surveillance programs rely on the transborder nature of communications as a basis...