William & Mary

Protecting First Amendment liberties at and beyond our borders

{{youtube:medium|rkGafI6bQ-k}}

In recent years, media such as BBC News, Stars and Stripes, and U.S. News & World Report have typically turned to Godwin Professor of Law Timothy Zick for his insights into domestic First Amendment controversies, such as the rights of protestors at Occupy Movement events, at military funerals, or outside abortion clinics. His first book, Speech Out of Doors: Preserving First Amendment Liberties in Public Places, explored the relationship between place and expressive liberties.

In his latest book, The Cosmopolitan First Amendment: Protecting Transborder Expressive and Religious Liberties, Zick invites readers to examine the First Amendment not in domestic places like public parks and streets, but at and beyond America's territorial borders. The book begins with a discussion of transborder First Amendment concerns and concepts, examines a variety of examples of "conversation and commingling" that take place across and beyond U.S. borders, and concludes with a discussion of the First Amendment as it relates to the community of nations.

Read about the book in the Law and Politics Book Review.

Zick observes that most First Amendment scholars, and indeed most First Amendment courses, focus exclusively on the intra-territorial or domestic exercise of expressive and religious liberties. "I think that people generally think about the First Amendment in terms of 'here' versus 'there' and 'us' versus 'them,'" [referring to citizens and aliens] he says. "A core part of my argument in this book--the 'cosmopolitan' part of the argument--is that it is no longer appropriate, if it ever was, to think of freedom of expression and freedom of religion as confined by territory." He notes that globalization, digitization, and other phenomena have fundamentally altered the manner in which people exercise, and governments regulate, First Amendment rights.

book jacketZick says many Americans are likely familiar with some of the headline-grabbing protagonists who have sparked court cases about First Amendment liberties in the past 40 years, such as members of the Ku Klux Klan, Larry Flint of Hustler magazine, and members of the Westboro Baptist Church.

In The Cosmopolitan First Amendment, Zick highlights "a new generation of First Amendment protagonists." "Their actions and the responses to them," Zick writes in the Introduction, "highlight some of the characteristics and complexities of the First Amendment's transborder dimension."

Among the transborder protagonists Zick discusses in the book: Tariq Ramadan, a Swiss scholar and expert on Islamic texts, who sought to travel to the U.S. to teach at a university, and, later, to attend academic conferences, but was barred from entry by officials on numerous occasions; Terry Jones, a Florida pastor whose much-publicized burning of the Koran led to riots in Afghanistan; Tarek Mehanna, an American whose translation and posting of radical Arabic texts and videos were used as a basis for his conviction and imprisonment; and Julian Assange, who garnered international attention by posting classified U.S. military documents to the WikiLeaks website and also sharing them with news outlets. As Zick observes, the actions of these and other modern speakers require that we pay more attention to cross-border and beyond-border speech, information flow, and association.

In the book, Zick distinguishes between two general conceptions of the First Amendment--the "provincial" and the "cosmopolitan." These terms generally relate to how judges, lawmakers, scholars, activists, and litigants conceive of the First Amendment's geographic scope and its place in the world.

Zick emphasizes that he does not use the term "provincial" in a pejorative sense. Those who take the "provincial" perspective, he says, essentially view the First Amendment "as domestically applicable and important primarily, but not exclusively, to U.S. citizens who are speaking or associating within our borders."  Zick notes that this is a very traditional conception of our First Amendment. In contrast, he describes and defends a "cosmopolitan" vision of the First Amendment that emphasizes the exercise of rights across and beyond international borders, and that highlights the salience and influence of the First Amendment beyond U.S. borders. The book emphasizes that our First Amendment exists in a pluralistic world in which conceptions of expressive and religious rights differ, sometimes significantly. Cosmopolitanism suggests that we acknowledge and respect this pluralism, avoid imposing U.S. speech and religious liberty values on the rest of the world, and work to find common ground with respect to expressive and religious liberties.

A starting point in terms of thinking about cosmopolitan First Amendment liberties, Zick says, is to consider the transborder First Amendment rights of U.S. citizens. Zick observes that most Americans would be surprised to learn that the rights to speak, associate, travel, and exercise religion across international borders are not clearly established under the First Amendment. "We should make sure that [Americans] are able to communicate freely across borders," he says. "The idea that the free flow of information across borders is a central human right is well accepted in a number of countries. ... I argue that we ought to take the same view, that cross-border communication and the free flow of information is a matter of fundamental First Amendment concern, whether it [occurs] through individuals or the institutionalized press."

Zick says that exercise of transborder First Amendment rights obviously implicates important government interests in protecting citizens and conducting foreign relations.  "I do acknowledge in the book that the government has serious national security and foreign affairs concerns in many of these contexts," he says. Even so, he argues, the First Amendment retains much force in transborder contexts. "I think the balance has been struck . . .  in a way that creates an exception to freedom of speech [at and beyond international borders]."

Zick recognizes that not all readers will agree with his specific proposals for recognizing and protecting transborder liberties and respecting global pluralism. Even so, he hopes the book will highlight and explain an increasingly important dimension of the First Amendment in the 21st century.