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Copyright (c) 1993 Temple Political & Civil Rights Law Review
Temple Political & Civil Rights Law Review

The First Amendment in the Foreign Affairs Realm: "Domesticating" the Restrictions on Citizen Participation

APR 1993

2 Temp. Pol. & Civ. Rts. L. Rev. 255


by Brad R. Roth *


I. Introduction

Courts, constitutional scholars, and ordinary citizens of the United States have long recognized the crucial role of free speech and free access to information in a democratic polity. Without an airing of the widest range of views and information, governmental actions are shielded from proper review and evaluation, resulting in the concentration of political power in the hands of dictatorial authorities. A democracy requires that decisionmaking power be widely dispersed, with citizens free to evaluate independently the issues of the day, to associate with like-minded persons, and to take appropriate action. Such action may involve organizing to defeat elected officials whose decisions do not embody the citizens' values or ideas, or it may extend to participation in public affairs outside the realm of the electoral process, in voluntary projects that bring to bear, in former President Bush's expression, "a thousand points of light." 1

Yet this seemingly uncontroversial proposition remains open to remarkable challenges when the issues involved relate to foreign affairs. In this field, the constitutional lines are poorly demarcated, and the reach of restrictive legislation unclear. The unabashedly repressive legislative mindsets of past eras, which brought us such statutory schemes as the Alien and Sedition Acts 2 of the 1790s and the Subversive Activities Control Act 3 of the 1950s, have left a residue that poses a continuing danger to constitutional liberty, and thus to democratic control over decisions of life-and-death consequence for Americans and for the world at large.

The assertion that free speech ...
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