A Empirical Study On Invoking The Free Speech Clause In The Dispute Of Reputation Right

One key factor cannot be avoided when we are going to talk about the right of free speech concerning with the dispute of Reputation Right,that is Free Speech Clause in the Constitution.According to the founding of empirical study,the invocation of the Free Speech Clause may vary from cases in the courts.From the perspective of type of Invoking the Clause,it mainly includes invoking content without specifying specific terms,invoking specific terms and contents,invoking without further explaining,invoking and making further explanations,etc.From the perspective of function of Invoking the Clause,it mainly includes Reinforcing Argument,explicating the meaning of legal provisions,Interest Measurement,etc.However,the situation in which judges invoke the Clause to solve the dispute of Reputation Right may be a little unsatisfactory,and this situation is caused by passive attitude towards to the Clause,unified judicial practice and insufficient argument of the courts.In a case concerning with dispute of Reputation Right,the way the court invoke the Free Speech Clause in certain circumstances will affect the reasonableness and persuasiveness of the verdict.At the same time,it is also the inherent demand of the principle of Public trial.Therefore,it is extremely urgent to establish a certain system to institutionalize court invoking Free Speech Clause in the dispute of reputation on the basis of analyzing existing problems.Taking the guiding case as a clue,the specific rules of court invoking the Free Speech Clause can be clearly defined by it: the court can only invoke the Clause when needed in reasoning in the judgment.The court should invoke the Clause when the parties invoke the Clause,in order to explicate the meaning of legal provisions or protect the freedom of speech differently.The Clause should be fully invoked and the complete name of Constitution should also be mentioned in the verdict,furthermore,further explanation of the Clause should be made by means of legal interpretation.In short,court s should take Free Speech Clause seriously in the dispute of reputation rights,and follow a certain rule when invoking the Clause.