| Summary: | This dissertation is a comparative legal study. It tells a story of how a new liberal democracy Taiwan, which is highly committed to free speech protection, develops its laws of defamation in a seriously polarized politics over conflicting national identities. The polarized politics most vividly embodies in the "politics of rumors", which showcases grossly irresponsible defamatory speech as one of the most widely used methods of political competition and mobilization. The underlying problematic of this comparative legal study is this: even if a new liberal democracy like Taiwan has strong commitment to freedom of speech and press, and if the American First Amendment regime is a viable option to show such commitment, does its society have what it takes to make it work? What free speech principle and approach are most helpful in regulating the public sphere of a new liberal democracy like Taiwan, in order to consolidate its newborn democratic regime? Democratic consolidation is a process, in which both the idea of democracy and the concrete constitutional arrangement become solidly legitimated among both the elite and the mass, to the extent that democracy has become "the only game in town". The danger faced by an advanced new liberal democracy like Taiwan is not immediate breakdown, but chronic erosion of democratic legitimacy. And once a new democracy has proceeded to become liberal for a relatively sustained period of time, it acquires increasing importance to expand our analytical vision to include the public sphere as a social realm, the development of which affects progress toward democratic consolidation. Taiwan's newborn democracy, despite tremendous progress in the previous decade, has encountered serious setbacks during the Chen Shui-bian administration from 2000 through 2008. Severe political polarization along the dominant political cleavage, namely blue v. green camp, seriously eroded the democratic legitimacy of Taiwan. Rising 'semi-loyal" behaviors among partisan elite and their constituencies signal erosion and de-legitimation of the democracy itself and the concrete constitutional arrangement. The politics of rumors, which culminated in the emergence of baoliaowenhua (radical culture of expose), signify rising semi-loyalty and is part of the larger process of political polarization. It featured the breakdown of the gate-keeping and truth-seeking functions of Taiwan's core and professional sectors of public sphere. Severe distrust between rival political camps gave rise to blatant rumor-mongering by partisan and media elite, which resulted in multiple high-profile political libel suits. The political polarization came as heightened conflict between two national identities and nationalistic agenda, i.e. Taiwanese vs. Chinese national identities. Barry Weingast's rational choice model of democratic consolidation sheds light on the process. When a significant segment of society perceives serious threats from the administration and the constitutional regime to their fundamental interests or their precious values, it is willing to resort to extra-constitutional or semi-loyal behaviors to fend off the threats. Democratic Progressive Party's victory in 2000 presidential election gave rise to an era of divided government, with the rival pan-blue camp dominating the Legislative Yuan throughout Chen Shui-bian's two terms in office. In Taiwan's context, when rival camps controlled respectively the two most powerful branches of government under a presidential regime, the clash between the executive and the legislative branches aggravated. Further, the conflict is worsened, because of abuse of power and corruption of the DPP administration
Taiwan's judiciary was inevitably entangled in the political conflict. And defamation suits have become one of the most prominent types of litigation to resolve political feuds. In the wake of Interpretation No. 509 issued by the Grand Justice in 2000, Taiwan's courts were given ample room to reshape the defamation laws and relevant aspects of freedom of speech. Interestingly, Taiwan's courts, particularly the Taiwan High Court, have taken a generally speech-tolerant approach, comparable or even surpassing the American doctrine of "actual malice". This is because the severe political polarization put great pressure on the courts, and the courts' best strategy was to stick to something authoritative and externally given. When the black-letter laws were inherently ambiguous, all that was left for the courts was the Zeitgeist of the previous decade, crystallized in I.509's opening paragraph, that "freedom of speech shall be given maximum protection". Moreover, political polarization and mutual distrust has seriously undermined social consensus upon criteria in political libel cases of what constitutes "reckless disregard" and when further prior investigation of facts is required. Ultimately, under the polarized politics, the courts might have been pushed toward a "partisan fortress model" of freedom of speech, which gives speech a degree of protection otherwise unreasonable in a society less divided, so that both camps feel more secure against the perceived potential encroachment from the rival camp. Taiwan's extraordinary development of freedom of speech has testified to how meandrous a trajectory a new democracy might take in developing its understanding of fundamental social mechanisms. A well-functioning marketplace of ideas has to be founded upon a solid public sphere. For a new liberal democracy, it is important to come up with a realistically attainable ideal of public sphere. I argue that Habermas's concept of public sphere is premised upon a conception of "publicness as rational participation". This concept has been developed with an aim to make an already established political and social order in an established democracy more inclusive and responsive to the general society. Yet the most important challenge for a new democracy is to establish the political order in the first place, which gives rise to a distinct problematic. For the concept of public sphere to address the challenges of a new liberal democracy, an underestimated conception of "publicness as public trust" should be uncovered. It means that for the mass to come together as a "public", "trust" is just as important as "participation". Even when the citizenry does not participate directly in the governing process, there has to be a thick layer of social consensus and a complex web of trustworthy social mechanisms, in order to ascertain political truths and mediate political conflict. In a new liberal democracy, freedom of speech in the public sphere should make "publicness as public trust" an important constitutional value. This principle of free speech offers guidance for judiciary in a new liberal democracy like Taiwan, but it should not directly dictate concrete doctrines and case outcomes. The volatile political environment of a new democracy in which the courts operate demands a heightened sensitivity on the part of the courts to consequences and conditions of any substantiation of free speech principles in concrete cases.
|
|---|
