The Right to Receive Foreign Speech
Document Type
Article
Publication Date
2018
Publication Title
Oklahoma Law Review
Abstract
Foreign meddling in the 2016 presidential election—from Russian hacking and leaking of Democratic National Committee emails to the foreign power’s dissemination of fake news and other disruptive falsehoods on major social media platforms—deeply impacted the coverage of and campaigning by the candidates. Even if this sophisticated disinformation operation ultimately did not change the outcome of the election, it raises serious concerns about the vulnerability of our electoral democracy to foreign interference and basic questions about the nature and extent of First Amendment protection for speech from abroad, including from speakers affiliated with hostile foreign countries. While the First Amendment generally does not protect foreign speakers outside of the United States, the openness of the internet to speech from abroad and the power of vast social networking platforms to spread such speech call for fresh consideration of First Amendment coverage on the listener’s end of the speech relationship. This Article does that. First, it examines the extent to which existing caselaw on the right to receive information and ideas either already protects or might extend to safeguard access to speech from abroad by foreign sources. Next, it considers how traditional justifications for protecting domestic speech—truth-seeking, self-governance, and self-realization—generally support open access to foreign speech, and possibly even to disinformation from hostile nations in the high stakes context of elections. Finally, this Article recommends disclosure of the identity of foreign-state speakers and early education to instill media literacy as policy responses to foreign meddling in the domestic marketplace of ideas that are consonant with both First Amendment doctrine and functions.
Volume
71
First Page
269
Recommended Citation
Joseph Thai, The Right to Receive Foreign Speech, 71 Okla. L. Rev. 269 (2018).
