Table of Contents

Constitutionalism Across Borders in the Struggle Against Terrorism

Constitutionalism Across Borders in the Struggle Against Terrorism

Edited by Federico Fabbrini and Vicki C. Jackson

This edited collection explores the topic of constitutionalism across borders in the struggle against terrorism, analyzing how constitutional rules and principles relevant in the field of counter-terrorism move across borders. What emerges is a picture of the complex interplay of constitutional law, international law, criminal law and the law of war, creating webs of norms and regulations that apply in the struggle against terrorism conducted across increasingly porous borders.

Chapter 13: The extraterritorial First Amendment

Anna Su

Subjects: law - academic, constitutional and administrative law, terrorism and security law, politics and public policy, constitutions

Extract

Court opinions and academic literature involving the geographic reach of the U.S. Constitution, particularly its Bill of Rights, have not generally involved the First Amendment. Contemporary free speech doctrines also continue to contemplate its contours as confined within domestic territorial borders. Consequently, even as the reach of U.S. government scrutiny and regulation extended to speech made beyond traditional borders by both citizens and aliens alike, the jurisprudential landscape involving the extraterritoriality of the First Amendment remains, at best, an open-ended inquiry. Consider the U.S. Supreme Court’s 2008 decision in Boumediene v. Bush where the Court categorically rejected the claim that constitutional rights do not apply at all to governmental actions taken against aliens located abroad, but it also made the application of such rights, the First Amendment potentially included, contingent on “objective factors and practical concerns.” Notably, as it affirmed previous extraterritoriality decisions, it also appeared to open the door to this functional test covering even U.S. citizens, leaving them in a situation where they might also be left without any constitutional recourse. Moreover, since Boumediene was largely about the right to habeas, the import and application of the decision outside that context remains unclear. With regard to the First Amendment in particular, this ambiguity is replaced with tension.

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