【作者】 徐会平；

【导师】 齐延平；

【作者基本信息】 山东大学 ， 宪法学与行政法学， 2013， 博士

【摘要】 个体自由的言论自由观是一种从个体的视角看待言论自由的观念。这种言论自由观源于霍布斯开启的个人主义传统,之后又为美国宪法第一修正案所强化。这种观念在当今世界获得了普遍的影响力,世界上绝大多数国家都将言论自由作为一项基本人权或者权利在宪法中加以规定。长期以来,我国学界也一直把言论自由视为一项个体自由。突出的表现是我们通常把言论自由作为一项基本人权加以讨论,将讨论公共事务的言论与淫秽、商业等非政治性言论混同视之,并试图用同一标准来为各种不同类型言论划定界限。与商业、淫秽等非政治性言论相比,政治性言论有其特殊性。一方面,我们可以将政治性言论理解为一个人想说什么就说什么的自由。当我们对政治性言论做这种理解时,它本质上与商业、淫秽等非政治性言论并不存在差异。另一方面,我们又可以将政治性言论理解为民主社会中公民参与政治过程、就公共事务发表意见的自由。当我们对政治性言论做这种理解时,它与非政治性言论之间就存在着根本区别。政治性言论不仅仅关涉个体自由,还关涉政治自由。当我们仅仅从个体自由的角度来看待政治性言论时,我们在理论上就无法对政治性言论与非政治性言论做出区分,从而会将二者混为一谈,进而就会把政治自由降低到个人自由的地位,最终用个体自由的标准来为政治自由划定界限。个体自由的一元观不仅阻碍着我们对言论自由理论的把握,也阻碍着言论自由保护的制度构建。我们有关言论自由的理论和制度保护的探讨应当建立在两种言论自由观区分基础之上。煽动性诽谤是英美历史上一项普通法罪名,在事先审查制度被废止后成为英美政府控制言论的主要手段。尽管英美普通法从未以概念化形式对煽动性诽谤进行准确界定,但从实践来看,‘任何对政府的构成、性质及政策的批评、蔑视或取笑,都会降低人们对政府的尊重,从而有可能被认定为煽动性诽谤。煽动性诽谤的核心和实质是禁止公民对政府及其官员进行批评,它与言论自由的关系构成1964年之前美国言论自由的主题。此前无论是传统的自然法理论还是言论自由市场理论都没有能废止这一罪名。究其原因,该两种理论都是从个体自由的视角来看待言论自由的。只要将言论自由视为一项个体自由,逻辑上就必定无法彻底否定对言论进行事后惩罚的合理性。直到1964年联邦最高法院从政治自由的视角出发阐明了公共讨论对于民主政治的重要意义后,煽动性诽谤才被彻底废除。此后,立基于政治自由的观念,言论自由在联邦最高法院受到近乎绝对的保护。区分言论自由的两种观念对于理解和把握美国言论自由的历史和当下具有极其重要的意义。本文以美国言论自由的历史为基础区分了个体自由和政治自由两种不同的言论自由观念;阐释了以个体自由观为基础的传统自然法理论、言论自由市场理论和以政治自由观为基础的公民自治理论给予言论自由的意义,揭示了以这三种理论为基础的司法准则——“恶劣倾向准则”、“明显而现存危险准则”、“公共讨论自由应当不受限制准则”——所蕴含的言论自由保护逻辑,“言者有罪”、“言者未必有罪”及“言者无罪”,指出了言论自由在当代美国受到高度保护是言论自由理论和司法实践由个体自由向政治自由转向的结果；探讨了两种言论自由观存在及转向的制度原因,并从两种言论自由观的关系出发分析了当今联邦最高法院有关言论自由案件的判决“统一”与“分裂”并存的现状。基于此,论文正文内容分五章,基本内容如下：第一章在对美国建国前后有关言论自由的历史进行同情化理解的基础上,阐述了美国宪法中限于个体自由的言论自由观和基于政治自由的言论自由观两种不同的言论自由观。这两种言论自由观在缘起、理论基础、理论基点及性质等方面都存在着诸多差异。限于个体自由的言论自由源于良心和宗教信仰自由,体现在美国宪法第一修正案中,直接关注的是个人权利如何得以满足的问题,是一种想说什么就说什么的自由。这种言论自由是一项人民作为被统治者所享有的权利,它要求为政府权力划定边界,属于消极自由的范畴。基于政治自由的言论自由观源于英国议员在议会中对公共事务进行辩论不受惩罚的特权,体现在美国宪法序言“我们人民”的民主精神之中,所关注的是如何创造并维持民主制度的问题,是一种确保人民能够对公共问题做出明智判断和选择的自由。这种言论自由是一项人民作为主权者和统治者所享有的权力,它要求人民控制政府权力本身,属于积极自由的范畴。第二章探讨了限于个体自由的言论自由观所蕴含的理论逻辑以及与之相对应的司法准则。以洛克的思想为代表的自然法理论是普通法上煽动性诽谤及其司法上“恶劣倾向准则”的理论基础。根据“恶劣倾向准则”任何被认为具有恶劣倾向的言论都应受到惩罚,它包含着一种“言者有罪”的逻辑。这一准则是1919年之前美国言论自由的司法准则。1919年至1964年美国绝大部分言论自由案件适用的是霍姆斯提出的“明显而现存危险准则”,其理论基础是言论自由市场。根据这一准则,言者是否有罪需要置于言论发表的环境下进行具体个案衡量。它本质是一种衡平准则,包含着“言者未必有罪”的逻辑。这一准则使煽动性诽谤的合法性处于一种不确定的地位。无论是以洛克的思想为代表的自然法理论,还是密尔、霍姆斯的言论自由市场理论始终都无法彻底否定煽动性诽谤,原因在于这两种理论都是从个体自由的角度来看待言论自由的。只要将言论自由视为一项个体自由,逻辑上就必定无法彻底否定对言论进行事后惩罚的合理性。第三章分析了基于政治自由的言论自由观所蕴含的理论逻辑以及与之相对应的司法准则。米克尔约翰基于政治自由的立场的公民自治理论认为对言论自由的任何限制都是对公民自治的破坏,没有言论自由的保障,政治自由就不复存在。公民自治理论不仅要求不能对言论进行事先审查,也禁止对言论进行事后的惩罚。这使得对言论进行事后惩罚的煽动性诽谤完全丧失了存在的合理性。立基于政治自由,联邦最高法院在1964年纽约时报案中阐明了美国宪法第一修正案中心意义,即“公共讨论的自由应当是不受限制、强健有力和完全开放的”。此后对公共事务讨论的自由在联邦最高法院受到近乎于绝对的保护,从而使美国言论自由进入到一个全新的“言者无罪”的时代。就言论自由的保护来说,公民自治理论比言论自由市场理论相更具革命性的意义。第四章进一步探讨了美国法院有关言论自由案件的判决基点从个体自由到政治自由转向的制度基础。这种转变不仅仅源于言论自由理论的逻辑自洽,从根本说它是美国社会变迁引起的民主理念由共和向多元转向及其带来的司法审查理念从实体导向到程序导向转变的结果。与建国初期的小农经济为基础、高度同质化的社会相适应,美国实行的是共和民主。共和民主旨在追求一种区别于个体利益的公共利益,此时“由人民代表发出的公众呼声,要比人民自己为此集会和亲自提出意见更能符合公共利益”,因此言论自由存在的制度基础受到削弱。与共和民主追求公共利益的目的相适应,司法审查的目的在于确保多数人统治的政府追求公共而非多数人利益。据此,司法审查虽然在实践中划定了个体自由的范围,但如果法院一旦认定政府的行为符合公共利益,个体自由就要让位于公共利益。这与煽动性诽谤维护社会秩序的旨趣不谋而合。自19世纪末20世纪初开始随着美国社会经济发展、移民数量激增、文化多元化,共和民主逐渐向多元民主转向。在多元民主理念之下,民主意味着一套开放的程序,所有的个人和团体都可以通过这种程序自由地追求自己的利益。这时限制了言论自由,民主结果就会因程序瑕疵而丧失合法性。与多元民主理念相适应,司法审查也不再是审查民主结果是否符合公共利益,而是审查获取民主结果的政治过程是否公平、开放。法院对言论自由保护的强调与法院将自己多元民主程序监督者定位缠绕在一起；保护言论自由与强化代议制司法功能紧密相连。第五章分析了当今美国联邦最高法院有关言论自由判决“统一”与“分裂”并存的现状。1964年之后美国言论自由存在两个不同题域：界限题域和配置题域。前者需要解决的是国家权力对公民言论自由的侵害问题,这个问题也是1964年之前美国言论自由的主题,煽动性诽谤案件是典型代表；后者需要解决的是谁的言论自由的问题,是1964年之后美国言论自由的主题,政治资金改革案件是最典型的代表。当今美国联邦最高法院虽然在界限领域很容易形成一致意见,但是在配置领域却持续分裂。这是言论自由题域转换而导致的两种言论自由观念由协调到冲突的结果。在配置题域内,那些持个体自由观的联邦保守派大法官们的错误之处在于将言论自由市场实质化。正如自由派大法官们所批评的那样,对美国宪法第一修正案来说,言论的自由市场并不是一个终极目标；是否需要一个自由市场取决于这个自由的市场是否有助于促进公共讨论自由这一更高宪法目标。本文的核心观点是美国宪法中存在着个体自由和政治自由两种不同的言论自由观念,个体自由的言论自由观并不存在着“言者无罪”的逻辑,它是基于政治自由的言论自由观的产物,政治性言论在当今美国受到高度保护是以政治自由而非个体自由为基础的。更多还原

【Abstract】 The concept of freedom of speech on individual freedom is one kind of concept that looks at freedom of speech from the individual perspective. This concept of freedom of speech is rooted in the traditional individualism initiated by Hobbes and later strengthened by the First Amendment to the U.S. Constitution. The concept has exerted widespread influence on today’s world, while most countries in the world have the freedom of speech as one kind of basic human rights or basic right specified in their constitution. For a long time, the freedom of speech is viewed as one kind of individual freedom in the academic circles of China, the significant aspect of which is that we usually take freedom of speech as one kind of fundamental human rights to discuss and mix up speech about public affairs with nonpolitical speech such as obscenity and business, trying to define the limits of different kinds of speech through a single standard.Compared with nonpolitical speech such as obscenity and business, political speech has its specialty. On one hand, political speech can be perceived as the freedom that one can say what they want to say. In this sense, there is no essential difference between nonpolitical speech such as obscenity and business and political speech. On the other hand, political speech can be construed as the freedom that in democratic society citizens can participate in political process and voice their opinions about public affairs. When perceived in this way, political speech is fundamentally different from nonpolitical speech. Political speech is not only concerned with individual freedom but political freedom. When looking on political speech only from the perspective of individual freedom, theoretically we cannot differentiate political speech and non-political speech, thus mixing them up, then reduce the role of the political freedom to individual freedom, and ultimately delimit political freedom with the standards of individual freedom. Monism on individual freedom not only hinders our grasp of the theory of freedom of speech, but also hinders the system construction on protection of freedom of speech. The theory on freedom of speech and its system protection should be based on the distinction between the two concepts of freedom of speech. Seditious libel is an accusation in common law in British and American history, and it became the main tool for British and American government to control speech after the censorship system was abolished. Although the Anglo-American common law has never accurately defined seditious Liberal in the form of conceptualization, but from the point of practice, any criticism or contempt the composition, nature and policy of government will reduce people’s respect for government, which thus may be deemed to be seditious libel. The core and essence of seditious libel is prohibition of the citizens’ criticism of the government and its officials, the relationship of which with the freedom of speech constitutes the topic of American freedom of speech before1964. Before then, both the traditional natural law theory and freedom of speech market theory did not abolish this accusation. The reason is that both of the theories view freedom of speech from the perspective of individual freedom. As long as freedom of speech is perceived as a kind of individual freedom, the rationality of subsequent punishment of speech cannot be completely and logically denied. Seditious libel has not been abolished until in1964the Supreme Court of the United States from the perspective of political freedom illuminated the significance of public discussion on democratic politic. After that, based on the concept of political freedom, freedom of speech in the Supreme Court was under almost absolute protection.In this paper, based on the history of American freedom of speech, first distinguishes the two different kinds of freedom of speech concepts-individual freedom and political freedom; Illustrates the significance to freedom of speech of the individual-freedom-based traditional natural law theory and freedom of speech market theory and political-freedom-based citizen self-government theory; reveals the logic contained in the judicial principles which are based on the three theories-"bad tendency norms","clear and existing risk criteria","public discussion should not be limited criteria"--"blame the speaker ","the speaker may not be guilty" and " blame not the speaker". And points out that the reason why freedom of speech is highly protected in contemporary America is the result of the change of freedom of speech theory and judicial practice from the individual freedom to political freedom; Discusses the institutional reason for the existence and change of the two kinds of speech freedom and analyzes the coexistence of "unity" and "splitting" situation of the recent Supreme Court rulings on freedom of speech Based on this, the thesis is divided into five chapters.Chapter One:I discuss the two different concepts of free speech contained in the U.S. Constitution based on the history before and after the founding of the United States. They have many differences in their origins, theories, the core stones which they stand on and the nature what they are. Freedom of expression limited to individual freedom originated in conscience and freedom of religion, embodied in the First Amendment to the U.S. Constitution, the immediate concern is how to meet the problems of individual rights is the freedom to say what one would say. This is a people’s rights to freedom of expression enjoyed by the rulers as it requires the government authority demarcation of the border, belong to the category of negative liberty. Concept of freedom of expression for political freedom from the British Members of Parliament to debate public affairs impunity privileges embodied in the preamble to the U.S. Constitution," We the People " in the spirit of democracy among the concerns is how to create and sustain democracy the problem is to ensure that people are able to make an informed judgment and freedom of choice on public issues. This speech is one of the people as the sovereign power and the rulers enjoyed it requires the people to control government power itself, belongs to the category of positive freedom.In the first chapter, based on the sympathetic understanding of the history on the freedom of speech around the founding of the United States, this paper expounds the two concepts of freedom of speech in the Constitution of the United States-freedom of speech concept which is limited to individual freedom and the freedom of speech concept which is based on political freedom. These two kinds of freedom of speech concepts differ a lot in the origin, theoretical basis, theoretical lens and nature. The freedom of speech which is limited to individual freedom is derived from conscience and the freedom of religious belief and is embodied in the first amendment to American Constitution. It is the freedom of saying what one wants to say, while its focus is how individual rights can be satisfied. This kind of freedom of speech is the right enjoyed by people as the ruled and it requires delimiting government power, which belongs to negative freedom. The freedom of speech concept which is based on political freedom stems from the privilege of British councilors’immunity of punishment for debating over public affairs, which is embodied in the democratic spirit "we the people" in the preface of the United States constitution. It focuses on the issue of how to create and maintain a democratic system and is a kind of freedom to ensure that people can make sensible judgment and choice of public issues. The freedom of speech is a power that the people enjoy as a sovereign ruler, which requires people to control the power of the government itself and belongs to the category of positive freedom.The second chapter explores the theoretical logic contained in the individual-freedom-confined freedom of speech concept and its corresponding judicial principles. The theory of natural law represented by Locke is the theoretical foundation of seditious libel and its judicial "criterion of bad tendency" in common law system. According to the rule of "bad tendency", any speech which is thought to have a bad tendency should be punished, which contains a "blame the speaker" logic. This criterion is the judicial criteria before1919of American freedom of speech. From1919to1964, the vast majority of cases of freedom of speech in the United States have adopted the "clear and existing risk criterion" put forward by Holmes, theoretical basis of which is the market of freedom of speech. According to this criterion, whether you’re guilty is ought to be measured in specific case under the situation where the speech was published. Its essence is a kind of equity principle, which contains the logic of "blame not the speaker". This criterion makes the legitimacy of seditious libel in an uncertain status. Neither natural law theory represented by Locke nor freedom of speech market theory of John Stuart Mill and Holmes can completely negate seditious libel, the reason of which is that both of the theories view freedom of speech from the perspective of individual freedom. As long as freedom of speech is treated as an individual freedom, logically the rationality of subsequent punishment cannot be completely denied.The third chapter analyzes the theoretical logic contained in freedom of speech concept on the basis of political freedom and its corresponding judicial criteria. The civic autonomy theory of Mikel John based on the position of political freedom believe that any restriction to freedom of speech is the destruction of civic autonomy and if there is no guarantee of freedom of speech, political freedom will cease to exist. Civic autonomy theory not only requires no precensoring speech, but also bans subsequent punishment for speech, which makes the seditious libel which punishes speech afterwards completely lose its rationality of existence. Based on political freedom, the Supreme Court in New York case in1964clarified the central meaning of the first amendment, namely "the freedom of public discussion should be unconstrained, sturdy, and fully open". Since then, freedom of discussion over public affairs is under nearly absolute protection at the federal Supreme Court, which thereby makes American freedom of speech into a new era of "blame not the speaker". As far as the protection of the freedom of speech is concerned, civic autonomy theory has more revolutionary significance more than freedom of speech market theory.The fourth chapter further discusses the ruling basis of American courts and the institutional basis of its change from individual freedom to political freedom. This change not only derived from coherent logic of freedom of speech theory itself, but also fundamentally speaking rooted in the change of the notion of democracy from republic to pluralism and its judicial review theory from substance-oriented to procedure-oriented, which are brought by American social change. To be compatible with its small-scale peasant economy based and highly homogenized society in its early years, the United States adopted republican democracy. Republican democracy aims to pursue a kind of public interest distinct from the individual interest and at this time "the calls made by the representatives of people are more in accordance with public interests than the assembly and personal suggestions made by the people themselves". So the institutional basis of the existence of the freedom of speech is weakened. To accord with the purpose of public interests pursued by republican democracy, judicial review aims to ensure the government of majority rule pursues public interest rather than the interest of majority. Accordingly, although judicial review outlines the scope of individual freedom in practice, still once if the court rules that the government’s behavior conforms to the public interest, individual freedom will give way to the public interest. With the social and economic development, the proliferation of immigration, cultural diversity of American society since the late19th century and early20th century, republican democracy gradually turns to pluralist democracy. Under the concept of pluralist democracy, democracy means a set of open procedure, through which all individuals and groups can be available to pursue their own interests. It then limits the freedom of speech, and democratic result will lose its legitimacy because of procedural flaws. Corresponding with concept of pluralist democracy, judicial review no longer examines whether democratic results conform to the public interest, but investigates whether political process to achieve democratic results is fair and open. The court intertwined its stress on protection of freedom of speech and its position as supervisors of pluralist democracy procedure. Protecting freedom of speech and reinforcing judicial function of representative system are closely linked.The fifth chapter analyses the current "unity" and "split" status of Supreme Court rulings about freedom of speech. After1964, there are two different domains of freedom of speech in the United States:demarcation domain and allocation domain. The former is to solve the state power’s infringement of citizens’ freedom of speech, which is the theme of the freedom of speech before1964, with the seditious libel case as its typical representative; the latter is to solve who the freedom of speech belongs to, which is the main topic of American freedom of speech after1964, with the reform of political capital case as its typical representative. Today although the U.S. Supreme Court are easy to reach an agreement in the domain of demarcation, continue to split in the domain of allocation. This is the result of coordination to conflict of two kinds of freedom of speech concepts led by the change of the freedom of speech domains. In the allocation domain, those federal conservative justices who hold the individual freedom concept erred in substantiation of freedom of speech market. As the liberal justices have criticized, for the first amendment to the U.S. constitution, the free market of freedom of speech is not an ultimate goal; Whether a free market is needed depends on whether the free market helps to promote the higher goal of constitution-freedom of public discussion.The core idea of this thesis is that there are two different concepts of freedom of speech-individual freedom and political freedom in the Constitution of the United States. And the freedom of speech concept on individual freedom does not exist "blame not the speaker" logic; it is the product of speech freedom based on apodictically freedom. The strong protection of political speech in current American is based on political rather than individual freedom.更多还原