| The concept of freedom of speech on individual freedom is one kind of concept that looks at freedom of speech from the individual perspective. This concept of freedom of speech is rooted in the traditional individualism initiated by Hobbes and later strengthened by the First Amendment to the U.S. Constitution. The concept has exerted widespread influence on today’s world, while most countries in the world have the freedom of speech as one kind of basic human rights or basic right specified in their constitution. For a long time, the freedom of speech is viewed as one kind of individual freedom in the academic circles of China, the significant aspect of which is that we usually take freedom of speech as one kind of fundamental human rights to discuss and mix up speech about public affairs with nonpolitical speech such as obscenity and business, trying to define the limits of different kinds of speech through a single standard.Compared with nonpolitical speech such as obscenity and business, political speech has its specialty. On one hand, political speech can be perceived as the freedom that one can say what they want to say. In this sense, there is no essential difference between nonpolitical speech such as obscenity and business and political speech. On the other hand, political speech can be construed as the freedom that in democratic society citizens can participate in political process and voice their opinions about public affairs. When perceived in this way, political speech is fundamentally different from nonpolitical speech. Political speech is not only concerned with individual freedom but political freedom. When looking on political speech only from the perspective of individual freedom, theoretically we cannot differentiate political speech and non-political speech, thus mixing them up, then reduce the role of the political freedom to individual freedom, and ultimately delimit political freedom with the standards of individual freedom. Monism on individual freedom not only hinders our grasp of the theory of freedom of speech, but also hinders the system construction on protection of freedom of speech. The theory on freedom of speech and its system protection should be based on the distinction between the two concepts of freedom of speech. Seditious libel is an accusation in common law in British and American history, and it became the main tool for British and American government to control speech after the censorship system was abolished. Although the Anglo-American common law has never accurately defined seditious Liberal in the form of conceptualization, but from the point of practice, any criticism or contempt the composition, nature and policy of government will reduce people’s respect for government, which thus may be deemed to be seditious libel. The core and essence of seditious libel is prohibition of the citizens’ criticism of the government and its officials, the relationship of which with the freedom of speech constitutes the topic of American freedom of speech before1964. Before then, both the traditional natural law theory and freedom of speech market theory did not abolish this accusation. The reason is that both of the theories view freedom of speech from the perspective of individual freedom. As long as freedom of speech is perceived as a kind of individual freedom, the rationality of subsequent punishment of speech cannot be completely and logically denied. Seditious libel has not been abolished until in1964the Supreme Court of the United States from the perspective of political freedom illuminated the significance of public discussion on democratic politic. After that, based on the concept of political freedom, freedom of speech in the Supreme Court was under almost absolute protection.In this paper, based on the history of American freedom of speech, first distinguishes the two different kinds of freedom of speech concepts-individual freedom and political freedom; Illustrates the significance to freedom of speech of the individual-freedom-based traditional natural law theory and freedom of speech market theory and political-freedom-based citizen self-government theory; reveals the logic contained in the judicial principles which are based on the three theories-"bad tendency norms","clear and existing risk criteria","public discussion should not be limited criteria"--"blame the speaker ","the speaker may not be guilty" and " blame not the speaker". And points out that the reason why freedom of speech is highly protected in contemporary America is the result of the change of freedom of speech theory and judicial practice from the individual freedom to political freedom; Discusses the institutional reason for the existence and change of the two kinds of speech freedom and analyzes the coexistence of "unity" and "splitting" situation of the recent Supreme Court rulings on freedom of speech Based on this, the thesis is divided into five chapters.Chapter One:I discuss the two different concepts of free speech contained in the U.S. Constitution based on the history before and after the founding of the United States. They have many differences in their origins, theories, the core stones which they stand on and the nature what they are. Freedom of expression limited to individual freedom originated in conscience and freedom of religion, embodied in the First Amendment to the U.S. Constitution, the immediate concern is how to meet the problems of individual rights is the freedom to say what one would say. This is a people’s rights to freedom of expression enjoyed by the rulers as it requires the government authority demarcation of the border, belong to the category of negative liberty. Concept of freedom of expression for political freedom from the British Members of Parliament to debate public affairs impunity privileges embodied in the preamble to the U.S. Constitution," We the People " in the spirit of democracy among the concerns is how to create and sustain democracy the problem is to ensure that people are able to make an informed judgment and freedom of choice on public issues. This speech is one of the people as the sovereign power and the rulers enjoyed it requires the people to control government power itself, belongs to the category of positive freedom.In the first chapter, based on the sympathetic understanding of the history on the freedom of speech around the founding of the United States, this paper expounds the two concepts of freedom of speech in the Constitution of the United States-freedom of speech concept which is limited to individual freedom and the freedom of speech concept which is based on political freedom. These two kinds of freedom of speech concepts differ a lot in the origin, theoretical basis, theoretical lens and nature. The freedom of speech which is limited to individual freedom is derived from conscience and the freedom of religious belief and is embodied in the first amendment to American Constitution. It is the freedom of saying what one wants to say, while its focus is how individual rights can be satisfied. This kind of freedom of speech is the right enjoyed by people as the ruled and it requires delimiting government power, which belongs to negative freedom. The freedom of speech concept which is based on political freedom stems from the privilege of British councilors’immunity of punishment for debating over public affairs, which is embodied in the democratic spirit "we the people" in the preface of the United States constitution. It focuses on the issue of how to create and maintain a democratic system and is a kind of freedom to ensure that people can make sensible judgment and choice of public issues. The freedom of speech is a power that the people enjoy as a sovereign ruler, which requires people to control the power of the government itself and belongs to the category of positive freedom.The second chapter explores the theoretical logic contained in the individual-freedom-confined freedom of speech concept and its corresponding judicial principles. The theory of natural law represented by Locke is the theoretical foundation of seditious libel and its judicial "criterion of bad tendency" in common law system. According to the rule of "bad tendency", any speech which is thought to have a bad tendency should be punished, which contains a "blame the speaker" logic. This criterion is the judicial criteria before1919of American freedom of speech. From1919to1964, the vast majority of cases of freedom of speech in the United States have adopted the "clear and existing risk criterion" put forward by Holmes, theoretical basis of which is the market of freedom of speech. According to this criterion, whether you’re guilty is ought to be measured in specific case under the situation where the speech was published. Its essence is a kind of equity principle, which contains the logic of "blame not the speaker". This criterion makes the legitimacy of seditious libel in an uncertain status. Neither natural law theory represented by Locke nor freedom of speech market theory of John Stuart Mill and Holmes can completely negate seditious libel, the reason of which is that both of the theories view freedom of speech from the perspective of individual freedom. As long as freedom of speech is treated as an individual freedom, logically the rationality of subsequent punishment cannot be completely denied.The third chapter analyzes the theoretical logic contained in freedom of speech concept on the basis of political freedom and its corresponding judicial criteria. The civic autonomy theory of Mikel John based on the position of political freedom believe that any restriction to freedom of speech is the destruction of civic autonomy and if there is no guarantee of freedom of speech, political freedom will cease to exist. Civic autonomy theory not only requires no precensoring speech, but also bans subsequent punishment for speech, which makes the seditious libel which punishes speech afterwards completely lose its rationality of existence. Based on political freedom, the Supreme Court in New York case in1964clarified the central meaning of the first amendment, namely "the freedom of public discussion should be unconstrained, sturdy, and fully open". Since then, freedom of discussion over public affairs is under nearly absolute protection at the federal Supreme Court, which thereby makes American freedom of speech into a new era of "blame not the speaker". As far as the protection of the freedom of speech is concerned, civic autonomy theory has more revolutionary significance more than freedom of speech market theory.The fourth chapter further discusses the ruling basis of American courts and the institutional basis of its change from individual freedom to political freedom. This change not only derived from coherent logic of freedom of speech theory itself, but also fundamentally speaking rooted in the change of the notion of democracy from republic to pluralism and its judicial review theory from substance-oriented to procedure-oriented, which are brought by American social change. To be compatible with its small-scale peasant economy based and highly homogenized society in its early years, the United States adopted republican democracy. Republican democracy aims to pursue a kind of public interest distinct from the individual interest and at this time "the calls made by the representatives of people are more in accordance with public interests than the assembly and personal suggestions made by the people themselves". So the institutional basis of the existence of the freedom of speech is weakened. To accord with the purpose of public interests pursued by republican democracy, judicial review aims to ensure the government of majority rule pursues public interest rather than the interest of majority. Accordingly, although judicial review outlines the scope of individual freedom in practice, still once if the court rules that the government’s behavior conforms to the public interest, individual freedom will give way to the public interest. With the social and economic development, the proliferation of immigration, cultural diversity of American society since the late19th century and early20th century, republican democracy gradually turns to pluralist democracy. Under the concept of pluralist democracy, democracy means a set of open procedure, through which all individuals and groups can be available to pursue their own interests. It then limits the freedom of speech, and democratic result will lose its legitimacy because of procedural flaws. Corresponding with concept of pluralist democracy, judicial review no longer examines whether democratic results conform to the public interest, but investigates whether political process to achieve democratic results is fair and open. The court intertwined its stress on protection of freedom of speech and its position as supervisors of pluralist democracy procedure. Protecting freedom of speech and reinforcing judicial function of representative system are closely linked.The fifth chapter analyses the current "unity" and "split" status of Supreme Court rulings about freedom of speech. After1964, there are two different domains of freedom of speech in the United States:demarcation domain and allocation domain. The former is to solve the state power’s infringement of citizens’ freedom of speech, which is the theme of the freedom of speech before1964, with the seditious libel case as its typical representative; the latter is to solve who the freedom of speech belongs to, which is the main topic of American freedom of speech after1964, with the reform of political capital case as its typical representative. Today although the U.S. Supreme Court are easy to reach an agreement in the domain of demarcation, continue to split in the domain of allocation. This is the result of coordination to conflict of two kinds of freedom of speech concepts led by the change of the freedom of speech domains. In the allocation domain, those federal conservative justices who hold the individual freedom concept erred in substantiation of freedom of speech market. As the liberal justices have criticized, for the first amendment to the U.S. constitution, the free market of freedom of speech is not an ultimate goal; Whether a free market is needed depends on whether the free market helps to promote the higher goal of constitution-freedom of public discussion.The core idea of this thesis is that there are two different concepts of freedom of speech-individual freedom and political freedom in the Constitution of the United States. And the freedom of speech concept on individual freedom does not exist "blame not the speaker" logic; it is the product of speech freedom based on apodictically freedom. The strong protection of political speech in current American is based on political rather than individual freedom. |
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