The Protection And Regulation Of Free Speech In The Perspective Of Law And Economic

In modern countries,freedom of speech is considered to be an extremely important citizen's fundamental rights,and in today's social speech is also playing an increasingly important role.From the perspective of academic history,Western classical theory of speech freedom is mostly built on the principle of abstract political philosophy,as an aspect of the pursuit of individual freedom;contemporary Western freedom of speech to explore the main line along the three-Law and economics from the analysis of the market attributes and the pros and cons of the analysis,community doctrine focus on freedom of speech and social welfare,the relationship between democratic politics,the relationship between ethnic relations,but also concerned about the freedom of speech on the development of their own meaning The Domestic research is also more extensive,to discuss the issue similar to the West,but the law of economics as a research method is still insufficient.In the study of the theory of the market of thought and speech,the discussion of the academic community begins with the comparison of the similarities and differences between the market and the commodity market.The mainstream view holds that the market of ideas and the commodity market is isomorphic.Therefore,the speech market will also appear in the market conditions of goods market failure,including:ideological and speech with externalities and public property attributes,information asymmetry,monopoly,political and ethical boundaries.Scholars from their own point of view to find the cause of failure,and put forward the corresponding policy recommendations;in some cases to protect or even subsidize the market,in some cases the need for government regulation.The construction of the analysis framework of the article aims to provide a set of theoretical formulas and categorization methods that theoretically provide a set of pros and cons about whether the government should regulate it.From Holmes'famous "clear and existing danger" principle to the Dennis formula,and then to the three Posner formulas,it shows several ways in which scholars can regulate both positive and negative aspects of speech.And then on the basis of the Posner formula to further explore,adding words to play its value to increase the time variable,and enriched the content of law enforcement and speech content,put forward the concept of this formula.The meaning of the literal expression of the formula is:we judge whether a speech should be suppressed,it should also weigh the value of the speech contained,its(possibly)the size of the harm,and regulate the law enforcement costs.Among them,the value of speech to consider the time discount,the social losses caused by the words to consider the consequences of adverse consequences and time discount;only when the words to the present to bring the greater harm than the strangled speech may bring society Value and containment of the law of the cost of law enforcement;the suppression of speech is rational.Finally,the practice of some countries will be the classification of speech regulation,the economic basis of these different types of words behind the types of information contained in different,which contains more productive information will be given the greatest protection(for example,Scientific remarks),statements that contain more(reverse)security information are not protected(such as criminal threats and abetting);statements that contain mixed information-productive,redistributive,and safety information are given Different degrees of protection.Contrary to the theoretical framework analysis,the regulation of speech in practice always deviates from the optimal equilibrium point.First of all,because of the public property attributes of speech,it is difficult to impose a proportional interest claim in the legislative process,and at the same time be bound by the cost of information,it is difficult for the legislative activities to give a targeted response to different remarks and tend to underestimate The value of speech.Secondly,because of the government to maintain their own image,to maintain social stability of the position,do not like to criticize the remarks,so political political speech has a natural hostility.This led to the absence of other hard constraints,the original "double public" political speech,not only can not get subsidies,but more likely to be suppressed.And excessive suppression of speech,not only will affect the welfare of the community as a whole,but also easy to encourage extreme speech and speculation.Because the repression of the act itself may convey the more important signal of the speech,it raises the "popularity" of the more radical words that are suppressed,which is not only an encouragement of radical speech,but also submerges those mild,Rational remarks,making the speech market "strong"currency expelled "warm" currency situation,extreme remarks flooding the market.In short,the suppression of the transition to speech,but will promote more intense speech.In order to bridge the gap between practice and theory on the issue of speech regulation,from the perspective of institutional construction,the most important and crucial is to establish the use of constitutional protection and independent justice to correct the speech regulation.In particular,because of the stability of the constitution and the role of the protection of the right,it is possible to give a lenient review of the speech to compensate for the lack of market supply and to correct the tendency of excessive suppression of speech and law enforcement.Then,the article with the principle of institutional economics to demonstrate why the court should also be the most neutral state organs,and then play the constitutional exercise of the main force of freedom of speech protection.This is mainly because the maintenance of their neutrality is a prerequisite for a fair judgment,and a fair judgment is the judiciary to achieve their own interests to maximize the comparative advantage.And if the court can maintain a neutral premise,is its own independence,no independence,in vain to talk about neutrality.On the other hand,it is inevitable that the judiciary will protect the constitution and will inevitably activate the judicial review system,which is a key step in enabling the realization of the rights on paper,while the judicial review system also increases the state organs to exercise the power of mutual restraint chips,which is consistent with the interests of the judiciary itself,which gives the judiciary to carry out judicial review,improve the quality of speech on the verdict to provide an endogenous motivation.