違憲審查的審查標準--美國法院判決分析
Date Issued
2003
Date
2003
Author(s)
黃昭元
DOI
912414H002005
Abstract
How to choose an appropriate standard
of review has been an issue central to the
function of judicial review, particularly in
practice. In theory, two approaches have
been mostly used: the U.S. courts tend to
adopt the approach of “bottom-up”
categorization in determining the standards
of review, while the German courts have
been used to a “top-down,” balancing test of
“proportionality principle.” This project
intends to analyze the U.S. court decisions
concerning the following two types of cases:
hate speech and academic freedom.
This research finds that the U.S.
Supreme Court regards the hate speech as a
subtype of fighting words, but applies the
strict scrutiny, rather than a more relaxed
rationality review test, to scrutinize the
governmental restrictions, which has been
classified as content-based restrictions or
even subject-discrimination. This research
argues that the court should pay more
attention to the equal protection concerns that
the hate speech involves and relax its
standard of review.
On academic freedom cases, the U.S.
did not begin to develop the idea of academic
freedom until the beginning of the 20 th
century. And only from the 1960s on did the
Supreme Court begin to accord the academic
freedom the status of institutional right as
protected by the constitution. In this regard,
the U.S. idea of institutional right should help
us re-shape our concept and definition of
academic freedom under our Constitution.
Subjects
Standards of Review
Hate
Speech
Speech
Academic Freedom
Free
Speech
Speech
Overbreadth
Content-Based Restrictions
Publisher
臺北市：國立臺灣大學法律學系暨研究所
Type
report
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