among the three, pure speech is considered as the highest protection, symbolic speech is considered as "very similar to pure language", and additional speech is considered as the most severely restricted because "it is a form of language expression in a behavioral environment without communication". Because the protection principle of pure speech is more complicated than the other two, this paper will first discuss the legal boundary between symbolic speech and additional speech. Symbolic speech and additional speech overlap in the principle of protection, that is, the principle of balance of interests can be applied to both. The principle of balance of interests was formed in the case of "America v. O 'Brien" in 1968. In this case, Chief Justice Warren, on behalf of the Supreme Court, first proposed that when combining speech with non-speech, the non-speech part can only be restricted if the following conditions are met, which is constitutional: (1) it is stipulated that important or substantial government interests must be promoted; (2) The interests of the government must have nothing to do with suppressing freedom of speech; (3) The incidental restrictions on the proposed freedom shall not be greater than those necessary to promote the interests of the government. Although the "O 'Brien Principle" is applicable to both additional speech and symbolic speech, there are still some differences in the applicable conditions: the principle of balance of interests is generally applicable to cases of additional speech, but if the government's restrictions on symbolic speech have constituted content restrictions, then the court will turn to apply strict review standards, that is, the government must prove that the laws under review are strictly formulated to realize the government's primary or vital interests. In addition, in practice, although the principle of balance of interests is adopted in this kind of "additional speech" cases, the Supreme Court tends to regulate additional speech. It can be seen that the court's attitude towards additional speech is much stricter than that of symbolic speech.
As mentioned above, the Supreme Court of the United States holds that pure speech should be protected at the highest level. So, what kind of laws restrict pure speech is constitutional? First of all, the court divides speech into speech that can be restricted according to the information it conveys and speech that can only be restricted through "content neutrality". Speech is divided in this way because people think that the First Amendment only protects speech that can promote the value it contains. Therefore, any speech that cannot promote the value contained in the First Amendment to a certain extent, such as obscene speech, false statements, commercial advertisements, etc. Either not protected by the first amendment, or only minimally protected. The law may restrict these remarks according to their contents. Similarly, these statements that must be restricted by law based on their contents can be further divided into "high-value statements" and "low-value statements". Among them, "high-value speech" mainly refers to dangerous ideas and information, such as calling on people to resist conscription; "Low-value speech" refers to commercial speech, inappropriate speech, etc. The First Amendment it contains is of little value and therefore should be less protected. On the legal boundary of freedom of speech, how to set the legal boundary of speech that is restricted by law based on its content has become the focus of constitutional scholars and courts, and it also constitutes the most complicated part of the principle of "restriction and restriction" in American courts. At present, the main principles of legal restrictions on this kind of speech are Holmes-brandeis principle (that is, the principle of "obvious and imminent danger"), the principle of fuzziness and oversize, and the principle of prior review. However, compared with the two, the court's legal restrictions on "low-value speech" are much more tolerant than the attitude of "high-value speech". As for the speech fully protected by the First Amendment, the reason why the law restricts it must have nothing to do with the content it conveys, that is, it can only limit the time, place and manner of speech, such as prohibiting noisy speech near the hospital. Of course, according to the principle of "case-by-case balance" established in ACA v. Dounds14, if the government can prove that it has a certain degree of legitimate interests in restricting "content-neutral" speech, it can also impose legal restrictions on it according to its content.
As we all know, there have always been two attitudes towards the restriction of freedom of speech by law, namely, absolutism and relativism. No matter from the legislation of various countries, various human rights conventions, or from the discussion of scholars, relativism can be said to occupy a dominant position. Even absolutists, such as Meiklejohn, don't think that any kind of speech can be restricted by law. Since relativism has become the common sense of all countries, it will inevitably involve the question of what legal boundaries will not infringe the freedom of speech protected by the Constitution. In order to find the legal boundary of the constitution, countries generally adopt the method of interest measurement, that is, compare the interests that a speech may promote with those that may harm, so as to decide whether to restrict it. However, in the face of different types of speech, people will face different specific interest choices. Taking political speech and business speech as examples, it is generally believed that political speech should be protected at the highest level, while legal restrictions on business speech are more acceptable. In this way, it is necessary for us to scientifically divide all kinds of speeches and establish different protection principles for different types of speeches. For example, the classification and protection principles of several kinds of freedom of speech in the United States mentioned above were finally established by Americans based on their own understanding of freedom of speech and their own values after decades of research and exploration. We may not agree with some specific views, such as we may not agree to classify behavior into the category of freedom of speech, or we may not agree to provide protection for inappropriate speech, but we cannot deny that this method of dividing speech is more conducive to protecting freedom of speech than our general methods of restricting freedom of speech.
after entering the 2th century, the in-depth development of scientific and technological revolution has brought about great changes in the mode of communication. The emergence of new modes of communication, such as radio, cable TV, movies and even today's Internet, has greatly enriched people's lives, but it has also brought many difficulties to the protection of freedom of speech. For example, the Red Lion Broadcasting Company v. FCC in 1969, FCC v. Pacifica Foundation in 1978, and Kovacs v. Cooper2 in 2 are all examples of the conflict between the new media and the traditional legal boundary of freedom of speech. Compared with the radio, cable TV and audio-visual involved in these cases, the network has a more revolutionary impact on human communication and even lifestyle, so its conflict with the traditional legal boundary of freedom of speech will be more intense.
At the beginning of the emergence of the Internet, due to the lack of understanding of the development trend of this emerging media and considering the special requirements of the Internet for the free flow of information, countries did not legislate specifically for the Internet; At the same time, the judicial circles and scholars have failed to reach a consensus on whether the existing laws are also applicable to the network, which leads to the network drifting outside the legal norms, that is, the so-called "unregulated" era in the 21st century. However, the result of this is the proliferation of online gambling, pornography, violence, propaganda of racial discrimination and so on. According to the statistics released by the conference on "Preventing the spread of racial hatred through the Internet" held in 2, there was only one website that spread racial hatred on the Internet, which was in 1995. By the middle of 2, there were more than 2, such websites, and there were more than 5 such illegal websites in Germany alone. In view of this situation, countries have gradually realized that cyberspace also needs legal norms, so they have gradually strengthened network legislation since the middle and late 199s. The United States, Britain, Germany, Russia and other countries have promulgated a series of telecommunications basic laws, e-commerce laws, network security laws, laws and regulations to protect intellectual property rights and information freedom, and the network has begun to move from the era of non-regulation to the era of regulation. But it is impossible to standardize the online world overnight. The basic behavior based on the Internet is information dissemination. The first problem that needs to be solved in network legislation is what kind of legal restrictions on online speech (or information) are constitutional. Because the network has many special properties different from the traditional media, we can't apply the traditional model to regulate online speech, but we must find new legal boundaries.
specifically, the network has the following special properties different from traditional media.
first, the network is "decentralized". That is to say, the network is open to everyone, and there is no distinction between providers and users of information on the network, and there is no need for so-called gatekeepers) .23 Every network user may be both a user and a provider of information. Therefore, the number of information sources on the Internet is "limited only by the number of users who want to access the Internet". This means that the diversity of information on the network can be maximized. Traditional media is completely different from the Internet. Take broadcasting as an example. In the field of broadcasting, almost all information content is owned by external intermediaries, which control the production and selection of content, as well as the steps, sequence and time of release. In this way, the diversity of information in broadcasting will inevitably be greatly reduced. And a basic requirement of freedom of speech is diversity, that is, allowing different opinions to exist. Both Mill's freedom theory and Holmes's "free market theory" emphasize the important role of free competition between opinions in obtaining the truth, and obtaining the truth is one of the main values of freedom of speech. Therefore, some scholars believe that maximizing the diversity of information sources is one of the most basic conditions for freedom of speech to play its value. The "decentralization" of the network determines that it can maximize the diversity of information, which also determines that the network is most conducive to the free speech value of all media.
second, the network is interactive. The so-called interactivity means that users control the exchange of information rather than the intermediary, that is, users may choose the information they accept. According to Roger? Fidler's division of media can generally be divided into interpersonal field, broadcasting field and literary field. Generally speaking, only the interpersonal field has the characteristics of interaction. Traditional media, such as radio, television or books, newspapers and magazines, can only belong to the field of radio literature. In the fields of broadcasting and literary communication, information always flows from the sender to the receiver, and users basically accept information passively, so they do not have the characteristics of interactivity in these two fields. Only the network can cover these three areas, and only the users of the network can actively choose and even influence the information they receive. For example, online chatting is a typical way of interactive communication. Looking back on the history of American government's legislation to regulate the media in the past, the court held that this kind of legislation to restrict speech was constitutional, mainly because users in traditional media could not control the exchange of information, and this restriction was particularly necessary in order to safeguard national security, social order and other interests of citizens. Internet users are different from users of traditional media, and the exchange of network information may be controlled by users, which provides a new way to control bad information on the network.
thirdly, the network is characterized by diversity, not only in its carrier, but also in its content. Traditional media such as radio can only spread information in the form of sound, while television can only combine images and sound at most. In addition to text, the network can also transmit sounds, images and movies, and can establish hypertext links. The complexity of online speech carrier determines the complexity of the legal boundary of online speech. In addition, as mentioned above, the network covers three fields: interpersonal field, broadcasting and literature. For example, chat rooms should be classified as interpersonal fields, real-time broadcast of network TV programs should be classified as broadcasting fields, and newsgroups and information retrieval systems should be classified as literature fields. However, the strictness of the law in restricting speech in these three areas is different. Generally speaking, the law has stricter restrictions on the broadcasting field than on the literature field, and the restrictions on the literature field are stricter than those on the interpersonal field. At the same time, there are not only general remarks on the Internet, such as chat rooms and emails, but also political remarks and business remarks. The legal restrictions on these different kinds of speech must also be treated differently in different situations. This complexity of the network determines that if there are some legal restrictions on online speech, how to draw such legal boundaries will be a very complicated work. This is also an important reason why the previous legal boundaries cannot be mechanically applied to the Internet.
fourthly, network users are anonymous. This means that a user's identity in this virtual world has nothing to do with his identity in the real world, so once a user accesses the Internet anonymously, it will be difficult for the government to find out the user's real identity. In the United States, the federal district court confirmed the user's right to conceal his identity online through ACLU v Miller32. Because the network is decentralized, any user can post information online. In this case, even if the government has enacted a law to restrict online speech, and a user's speech does violate this law, if the user hides his identity, it will be difficult for the government to find the person in charge of the speech, and the law will lose its meaning. This means that relying solely on the law to control online speech is not the best way to solve the problem. As a high-tech product, Internet should be supplemented by technical means to solve this problem.
From the above analysis, it can be seen that it is indeed a very difficult thing to determine the legal boundary of online freedom of speech. Then, what kind of legal boundary should freedom of speech on the Internet have? Judging from the information I have, American scholars are more cautious about this. Some scholars insist that no matter what the content of online speech is, it can only be restricted by "content neutrality", that is, it can only be restricted by the time, place and way of speech; Some scholars believe that only after people fully understand the Internet and the relevant judgments of lower courts can stand the test can Congress or the Supreme Court formulate relevant laws.