A Study on the Interpretation of the Limit of Freedom of Speech in Taiwan

Abstract Freedom of speech is one of the rights of people explicitly stated in the Article 11 of the Constitution of the Republic of China; it is also an indispensable basic human right in a free and democratic society. Are all speeches protected by the right of freedom of speech as stated in the Constitution of the Republic of China, regardless of their contents, or are some parts of speech not protected by the Constitution of the Republic of China? This is a critical issue involving the limit of a basic right, freedom of speech. However, the constitutional provisions are unable to provide an explicit answer to this issue. Therefore, this thesis intends to explore and clarify the limit of freedom of speech and the methods of legal interpretation from a legal perspective, conflict resolution of the right of freedom of speech and Right of Reputation, as well as their procedures of examination and judgment. Second, the history of the development of freedom of speech in Taiwan deserves more attention. From May 20, 1949, when the National Government declared martial law in Taiwan, to July 14, 1987, when martial law was lifted, Taiwan underwent a long period of martial law (38 years). During this long period of martial law, very stern suppression of the Taiwanese people’s freedom of speech was implemented, which highlighted the arduous development history of freedom of speech in Taiwan. Therefore, studies on the limit of freedom of speech should focus on observing how the evolution and changes of the freedom of speech proceeded from the aspect of Taiwan’s historical development during the period of martial law. The historical perspective shows a great change in the limit of freedom of speech from the period of martial law to that of post-martial law. However, what were the causes of such a great change? It seems difficult to analyze this issue from the legal aspect. Instead, the issue, including norms and interpretation, should be explored from the aspect of the sociology of law; in this regard, this thesis will present doctrinal and theory-related examples from the sociology of law. Niklas Luhmann’s theory of “double interchanges in law and politics” will be applied, and research methods of law and social science, including “dependent variable”, “independent variable” and “control variable”, will also be used to analyze factors behind the change of limit of freedom of speech before and after the period of martial law. This paper intends to present a brand new and proper interpretation on the limit of freedom of speech through the aforementioned research findings, including studies from a legal aspect, observations from a historical aspect and a comprehensive analysis based on the sociology of law.