From Suppression to Real Freedom of Expression in the Open and Plural Society of Taiwan—The Constitutional Court’s Role in This Progress

Freedom of expression is the most essential fundamental right in a democratic state, developing an individual’s personality, forming public opinion, and facilitating the control of government powers by allowing the person to express himself or herself freely. Regrettably, the freedom of expression in Taiwan had been suppressed for exactly these reasons for 38 years, the longest martial-law regime in human history. Under the legal framework of both the mobilization for the suppression of the Communist Rebellion (1948–1991) and martial law (1949–1987), the KMT government not only controlled mass media, assemblies, and associations by means of prior restraints but persecuted speech supporting communism and Taiwanese independence with strict penalties. Although under the domination of the KMT, the Press Law, Article 100 of the Criminal Code (old version) and other speech suppressions were abolished during times of democratic transition, many remained in force. Driven by an active civil society in the 1990s, the Taiwanese Constitutional Court has come to play a major role in deciding both classical and transformative freedom of speech disputes. Since the earliest Constitutional Court’s Interpretations on the freedom of expression, the Court has referred to American free speech jurisprudence, especially the two-tiered theory (J.Y. Interpretations Nos. 407, 414, 577, 617, and 623) and the two-track theory (J.Y. Interpretations Nos. 445, 644, and 734). Compared to other Taiwanese fundamental rights argumentations that are deeply influenced by German fundamental rights theory and dogma, this approach makes freedom of expression a quite unique field. However, the Constitutional Court’s reliance on American theories does not necessarily guarantee free speech a high level of protection since the Court often appears insensitive not only to a future of innovative communication technology but also to the country’s authoritarian past. With regard to freedom of the media, or more precisely, freedom of broadcasting, the Court’s majority failed to pay particular attention to the characteristics and significance of the respective media in the communication system, not to mention the impact of media convergence, which could subject TV broadcasters to out-of-date restrictions. In addition, although not surprising but definitely dangerous is the Court’s inattention to the unbearable White Terror history in dealing with prior restraints of expression in the 1990s. Knowing that political speech was at stake, the Constitutional Court in its J.Y. Interpretation No. 445 still insisted on holding the prior restrictions on the time, place, and manner of speech in the pursuit of public order and traffic safety as constitutional. The presumptive priority of spatial and social order undermined the significance of political expression in the context of intertwining social activities, and eventually expelled political dissidents from the focus of public attention. Fortunately for Taiwan, an open and plural society with an authoritarian past, the Court has become more cautious and has created the most stringent scrutiny standards for prior restrictions of speech in its latest J.Y. Interpretation No. 744.