[linux-elitists] The First Amendment, Across Borders

Seth David Schoen schoen@loyalty.org
Wed Apr 11 16:46:32 PDT 2001

Mr . Bad writes:

> So, does the First Amendment, specifically the free press and free
> speech clauses, apply for expression created and transmitted or
> transported from outside our borders into the U.S.? By radio, mail,
> phone or Internet?

The ACLU mentions Harisiades v. Shaughnessy, 342 U.S. 580, 592 (1952)
in support of non-citizens having first amendment rights while in the
U.S., but I don't think that this has been a general trend -- as far
as I know, non-citizens can be deported for "protected" political
advocacy.  Some anti-Communist laws applying specifically to
non-citizens have never been overturned or repealed.

The ACLU also mentions Bridges v. Wixon, 326 U.S. 135, 161 (1945),
which suggests, again, that aliens have full first amendment rights
while in the U.S.  But that doesn't necessarily mean that they can't
be deported as a result of their protected speech...

Grounds for deportation or exclusion are amazingly broad and include
all kinds of things that really rub in the fact that non-citizens
aren't citizens and have remarkably fewer legal protections.

Lamont v. Postmaster General, 381 US 301 (1965), is a more famous case
which is probably closer to what you want.  It held not that
foreigners have first amendment rights, but that U. S. residents can
have first amendment rights to receive material sent by foreigners
from outside the U.S.

At least, that should answer the "mail" part of your question

> What about expression made by American citizens not actually standing
> on U.S. soil? For example, a correspondent for an American newspaper?
> Or an American running a Web server in Siberia?

I guess that since non-citizens have Miranda rights in Kenya (see
the Feb. 13 opinion of Leonard B. Sand in United States v. Usama
bin Laden, currently pending in S.D.N.Y.), citizens probably have
first amendment rights there.

In the case of Ezra Pound, the fact that his wartime radio broadcasts
were legal in Italy, where they originated, did not protect him from
liability under U.S. law against helping a hostile foreign power.

Seth David Schoen <schoen@loyalty.org>  | And do not say, I will study when I
Temp.  http://www.loyalty.org/~schoen/  | have leisure; for perhaps you will
down:  http://www.loyalty.org/   (CAF)  | not have leisure.  -- Pirke Avot 2:5

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