International Law & the First Amendment

How They Intersect

By Gianna Emanuele Fernandez 

Gianna Emanuele Fernandez, a 2020 graduate of Albany Law School, was the Editor-in-Chief of the Albany Government Law Review, a recipient of the Isabelle Redman Prize and Joseph N. Barnett ’29 Memorial Scholarship, a research assistant in property law and graduated magna cum laude. Prior to attending Albany Law, Gianna graduated summa cum laude from University at Albany, SUNY with a Bachelor’s Degree in Criminal Justice.

 

While in law school Gianna held internships with the United States Attorney’s Office, Northern District of New York and the Fulton County District Attorney’s Office. Before deciding to pursue a career in law, Gianna worked for the Dept. of Social Services for three years. She is currently working as an Associate pending Admission for DerOhannesian & DerOhannesian law firm in Albany, NY focused on the areas of criminal defense, civil litigation and election law.

The United States has been at the forefront of the discussion relating to the state’s role in interpreting and implementing international law.  Even more influential in the international law discussion has been the Supreme Court’s assessment on the intersection of United States domestic law and international foreign law.

Many scholars view the Supreme Court as a filter between international law and the American Constitution.  Not surprisingly, the Court’s consideration of international law in domestic affairs has been wrought with much criticism from both ends of the political spectrum.  The Court has historically been divided between justices who see foreign law as “another source in deciding tough cases” and justices who believe that citing foreign law is “an improper and dangerous way to interpret American law and the Constitution.

In an interview with The Washington Post, Supreme Court Justice Stephen Breyer estimated that 15 to 20 percent of the Court’s cases require knowledge about what happens abroad. At the same time he acknowledged that there is an ongoing “political argument that people say the court shouldn’t refer to or cite cases from foreign courts.” With that in mind, Justice Breyer felt it necessary to repeatedly emphasize that the Supreme Court is a domestic court, not an international court, and that there is no "Supreme Court for the world."

The intersection of international law and American constitutional free speech underscores the difficulty of drawing a clear line separating international and domestic law.

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To read the paper, open HERE.