Edited by Federico Fabbrini and Vicki C. Jackson
Chapter 13: The extraterritorial First Amendment
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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