Regulatory Advocacy of Speech Discriminating against "Foreign Brides" and "Mainland Brides" －Starting from the Perspective of Critical Race Theory
Date Issued
2007
Date
2007
Author(s)
Tien, Jen-Jieh
DOI
zh-TW
Abstract
Mainstream society in Taiwan has been holding antagonism and exclusion towards "foreign brides" and "mainland brides" speech which discriminates against them is one manifestation of such. The subject matter of this Article is to research whether this type of discrimination speech, out of bold and blatant racism, should be regulated.
By observing cases related to hate speech regulation in American constitutional law, it can be discovered that the decisions, most of which are unfavorable to regulation advocates, reflect the court's position on the emphasis of free speech and the distain of equality right. On the other hand, critical race theorists assess more accurately the influence and significance of hate speech from the stance of the oppressed as ethnic minorities, and submit subversive but practical discourse on advocacy of regulating the speech. This Article, therefore, chooses to conduct the research based on the perspective of critical race theory.
Analyzing the situation of "foreign brides" and "mainland brides", including media representation as social problems because of inferiority in race, the marriage immigration law demonstrating nativism and racism and the multiple oppressions as result of the intersectionality of identities, this Article considers these migrant women minorities dominated by mainstream society.
According to empirical studies, speech which discriminates against migrant women does cause them tremendous physical and psychal harm. It also demonstrates the power relationship between the mainstream majority and the marginalized minority, thus infringing upon the equality rights of the migrant women. In light of the constitutional demand for equal protection, state shall grant them, "discrete and insular minorities", more protection. The unfriendly attitude revealed by the constitutional court and the myth of policy matter which the court frequently and inevitably is trapped in, further lends lawmakers justification to carry out the spirit of the constitution. Therefore, this Article deems regulation of discrimination speech a necessary measure which lawmakers should adopt instantly; the society of Taiwan and migrant women would both benefit thereof. As to the anxiety for the likely violation of free speech, this Article rather regards regulation as a state act of fulfilling genuine free speech under the picture of free speech based on anti-subordination equality. This Article further submits suggestions on regulation design, and drafts statutes accordingly.
As to the judicial review of the content based regulation of discrimination speech, apart from looking into the fact that similar regulations are sustained in developed democratic countries, the grand justice should either discard the content-neutral principle relying on the interpretation methods of "sectoral constitution", or recognize race discriminating speech as a new category of low-value speech, and apply rational relationship test while conducting judicial review.
Subjects
外籍新娘和大陸新娘
新移民女性
歧視言論
言論管制
批判種族理論
弱勢少數
言論自由
種族平等
婚姻移民法制
批判種族女性主義
本土種族主義
自由主義
反歧視法
司法違憲審查
內容中立原則
部門憲法釋義學
審查標準
foreign brides and mainland brides
migrant women
discrimination speech
speech regulation
critical race theory
mainstream society
disadvantaged minorities
free speech
racial equality
marriage immigration law
critical race feminism
nativism and racism
libertarianism and liberalism
anti-discrimination law
judicial review
content-neutral principle
interpretation method of sectoral constitution
standard of judicial review
Type
thesis
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