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Abstract: This Article examines the First Amendment's critical transborder dimension-its application to speech, association, press, and religious activities that cross or occur beyond territorial borders. Judicial and scholarly analysis of this aspect of the First Amendment has been limited, at least as compared to consideration of more domestic or purely local concerns. This Article identifies two basic orientations with respect to the First Amendment-the provincial and the cosmopolitan. The provincial orientation, which is the traditional account, generally views the First Amendment rather narrowly-i.e., as a collection of local liberties or a set of limitations on domestic governance. First Amendment provincialism does not fully embrace or protect trans-border speech, press, and religious activities; it views certain foreign ideas, influences, and ideologies with suspicion or hostility; and it envisions a rather minimal extraterritorial domain. First Amendment cosmopolitanism, which this Article offers as an alternative orientation, takes a more global perspective. It embraces and protects cross-border exchange and information flow and preserves citizens' speech and other First Amendment interests at home and abroad. At the same time, it respects foreign expressive and religious cultures and expands the First Amendment's extraterritorial domain. The Article critiques provincialism on various grounds. It offers a normative defense of First Amendment cosmopolitanism that is both consistent with traditional First Amendment principles and better suited to twenty-first century conditions and concerns. The Article demonstrates how a more cosmopolitan approach would concretely affect trans-border speech, association, press, and religious liberties.
Introduction
In its 2010 decision Holder v. Humanitarian Law Project, the U.S. Supreme Court upheld a federal law that criminalizes citizens' peaceful political speech when it is "coordinated" with organizations that have been designated by the U.S. State Department as "foreign terrorist organizations."1 The Court reasoned that (1) Congress and the executive could punish such "material support" to terrorist groups because, insofar as such organizations are concerned, words and weapons are fungible commodities; (2) providing these organizations with knowledge about international law and peaceful dispute resolution mechanisms could backfire; and (3) speaking to or on behalf of the groups would only serve to legitimize them.2 As written, the law in question is broad enough to prohibit providing editorial space to the designated organizations' leaders in U.S. publications, collaborating with them on peacebuilding efforts in...