Maurer School of Law: Indiana University Digital Repository @ Maurer Law Theses and Dissertations Student Scholarship 8-2020 Hate Speech and Democracy: Deciding What Sort of Legal Doctrine is Best Suited to Hate Speech Regulation in Taiwan Yen-Hsiang Chang Follow this and additional works at: https://www.repository.law.indiana.edu/etd Part of the Constitutional Law Commons HATE SPEECH AND DEMOCRACY —DECIDING WHAT SORT OF LEGAL DOCTRINE IS BEST SUITED TO HATE SPEECH REGULATION IN TAIWAN Yen-Hsiang Chang Submitted to the faculty of Indiana University Maurer School of Law In partial fulfillment of the requirements For the degree Doctor of Juridical Science August 2020 i Accepted by the faculty, Indiana University Maurer School of Law, in partial fulfillment of the requirements for the degree of Doctor of Juridical Science. Doctoral Committee ________________________________ Steve Sanders Professor of Law Maurer School of Law ________________________________ Jeannine Bell Richard S. Melvin Professor of Law Maurer School of Law ________________________________ Anthony Fargo Associate Professor Director, Center for International Media Law and Policy Studies The Media School August 8, 2020 ii Copyright © 2020 Yen-Hsiang Chang All Rights Reserved iii ACKNOWLEDGMENTS After three-year-stay, I finally ended a wonderful time in my whole life in Bloomington, Indiana, and finished this dissertation. The dissertation, however, cannot be done without so many smart and generous persons around me. First, I would like to thank my advisor, Professor Steve Sanders, for his guidance and patience through the whole three years. He leads me to achieve the research goal. I always remember our first meeting and enjoy every talk we had. Also, I would like to appreciate Professor Jeannine Bell, as one of my committee members, she guided me to build my basis of the First Amendment jurisprudence. She helps me to connect each theory about my research logically. Further, I would like to show my gratitude to another committee member, Professor Anthony Fargo, for his crucial comments on my dissertation. His suggestion of the related issues for my research in the future is precious. Besides, I would like to express my appreciation to Assistant Dean Lesley Davis. I appreciate that she treats all international students like her own family members. I feel warm and always cheerful in this school and this town because of her. I also have immense gratitude to Professor Gabrielle Goodwin. This dissertation cannot be done without her kind help, encouragement, and advice. Furthermore, I would like to say thank you to Professor Daniel Conkle, Professor Lisa Farnworth, Mr. William Schaad, Ms. Rhea May, Ms. Lara Gose, and Ms. Elizabeth Ryba. They are part of my joyful life in Bloomington; B-town is always such a beautiful town, not only because of those trees and flowers, but also those generous and kind people like them. Also, I want to thank Professor David Williams and Professor Susan Williams; their excellent courses enhance my knowledge in comparative law and Constitutional design. That knowledge will help my country, Taiwan, better than before. Last but not least, I would like iv to Thank Ms. Emma Kearney for her generous help to edit and revise my draft. I cannot imagine that the dissertation could be done without her great effort. I would like to thank my parents for giving me so much support. They always give and do not ask for any return; they are the reasons that I can concentrate fully on my research without worrying about any economic or daily-life issue. Also, I would like to express my appreciation to John C. Chen Esq. from Formosa Transnational. He is an ideal model for me to learn how to be an excellent lawyer, and how to be a great person. I would also like to appreciate Professor Ming-Shiou Cherng, Professor Ren-Chuan Kevin Kao, Professor Wen-Ching Fan, Professor Yaw-Shyang Chen, Professor Hui-Feng Hsu, Professor Kun-Sheng Chang, Jerry Zheng Esq., Yung-Cheng Kao Esq., Di-Ying Huang Esq., and the other wonderful friends in Taiwan for their deep support to me. Moreover, I would like to show my appreciation for many friends in this town and the United States: Professor Yea-Fen Chen, Professor Fei-Hsien Wang, Professor Ke-Chin Hsia, Anthony Chen, Siang-Yu Wu, Wei-Chih Hsu, Poren Chiang, Soo Chan Ahn, Suk-Chan Shim, Hyumok Lee, Hwi Won Kim, Phutchaya Numngern, New Pattranan Ruamsuk, Ja Bu and other excellent friends. I am sorry that I cannot name all of you in this limited space and thank you all for taking care of me through these days. Finally, I want to show my great gratitude to Aki Chieh Huang. Thank you very much for staying with me for so many days, months, and years. I hope that we can keep moving forward, overcome any difficulty, and enjoy so many joys in our life together. Here, I want to cite a paragraph in Professor Rwei-Ren Wu’s article, “Pariah Menifesto, or The Moral Significance of the Taiwanese Tragedy,” to remind myself why I choose to study abroad to fortify my legal profession at the very beginning. Professor Wu said, v “The moral of Prometheus’ prophecy is that, it takes two redemptions and hence two times of craft-learning to escape from the tragic destiny: the first is the craft of making things, and the second is the craft of the city, the so-called statecraft. In the past we have learned the craft of making things, and that is why we have been so good at manufacturing and business, but now we have to further learn the craft of governing, the statecraft. We have to learn, to practice and to perfect the craft of governing. We have to make a just polis in this unjust world. But can a just polis lead the pariah out of the containment of empires? No one knows the answer. But what we do know is this: a just polis is a torch that highlights the moral ruins and hypocrisy of empires. We are neither born good citizens nor noble tribe of the kings; it is predicament that forces us to learn virtues and crafts, and it is containment that turns us toward the world. Forced to be good—this is the moral genealogy of the pariah, and another form of slave vengeance.”1 Wish Taiwanese people could build a just polis and always turn toward the world. Yen-Hsiang Chang, in Taipei, Taiwan (Aug. 13, 2020) 1 Rwei-Ren Wu, Pariah Menifesto, or The Moral Significance of the Taiwanese Tragedy, in TAIWAN’S STRUGGLE: VOICES OF THE TAIWANESE 129, 136 (Shyu-tu Lee & Jack F. Williams eds., 2014). vi ABSTRACT 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: vii “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. viii Table of Contents ACKNOWLEDGMENTS …………………………………………………………………..…………...iv ABSTRACT …………………………………………………………………………………...…………vii TABLE OF CONTENTS ……………………………………………………………………..…………ix CHAPTER ONE: AN INTRODUCTION ……………………………………………………..………..1 CHAPTER TWO: WHAT IS HATE SPEECH? ……………………………………..………………...8 I. INTRODUCTION ......................................................................................................................... 8 II.