Date of Award
Doctor of Juridical Science (SJD)
Taiwanese people are committed to the values of freedom, democracy, and human rights. Nowadays, according to the rating posted on the Freedom House website, Taiwan is considered one of the world’s free countries and is among the best in providing political rights and civil liberties. Knowing this current state, it is hard to believe that the small island was under a period of martial law lasting for 38 years in the middle of the twentieth century.
Tremendous progress and transition in Taiwanese politics and society has happened after democratization. One significant change is the progression of the right to freedom of speech. The right to free expression in Taiwan is strongly guaranteed now, compared to the active censorship of expression under martial law before Taiwan became a democracy. However, any regulation of hate speech is still notably missing in Taiwan’s legal system. As a system in an emerging democratic country, the current Taiwanese legal system does not have any law specifically for hate speech unless the speech relates to an individual victim. Courts at all levels in Taiwan have usually given ample protection for people to comment on public affairs or issues, including the media commenters using hate speech. However, possible problems with hate speech still exist in Taiwan. These forms of speech have become specific issues in Taiwan. However, the current system fails to resolve the above problems.
After democratization, Taiwan underwent a rapid democratic and progressive societal change based on importing parts of legal systems from Western democratic countries and adapting them to form Taiwan’s own approach. Therefore, considering other countries’ strategies is useful in making the constitutional argument to find the appropriate approach in dealing with hate speech in Taiwan. Some democratic governments have strict limits or punishments for hate speech. Two different political models are usually discussed for hate speech regulations: “militant democracy” and “liberal democracy.” Most of the European approaches, including Germany, are based on the militant democracy theory, while the United States is a liberal democracy. The different approaches in Germany and the United States show the diverse attitudes countries may hold toward the limitations imposed on hate speech.
The motivation of this dissertation is to uncover whether hate speech undermines democracy under the perspective of comparative constitutional law. This article will compare freedom of speech rights in some democratic countries, such as the United States, Germany, South Africa, and the European Court of Human Rights, and consider the standard set by international organizations to understand why they have a diverse approach to regulating or not regulating hate speech. This dissertation will also consider how the new approach could resolve or alleviate the hate speech problems in Taiwan. I will make a constitutional design argument to find the appropriate method to deal with hate speech in Taiwan.
Chang, Yen-Hsiang, "Hate Speech and Democracy: Deciding What Sort of Legal Doctrine is Best Suited to Hate Speech Regulation in Taiwan" (2020). Maurer Theses and Dissertations. 79.