Criminal Boundary Of Freedom Of Speech

Freedom of speech is an extremely important character and value of democratic society. In consideration of the important role it plays in the development of individual talents, the strengthening democratic participation, and the balance of the power abuse, freedom of speech is enshrined in the constitution as one of basic civil rights in most of the countries all of the world, at the same time, several key international conventions provide for the freedom of speech in prominent positions., not excepting our Constitution in which article thirty-fifth stipulates that citizens enjoy freedom of speech and gives the freedom a legal guarantee.Because of its extreme importance for democracy and the rule of law, the freedom of speech has become such a popular topic in the academia that lots of deep insights are put forward about it.However, it’s vulnerable to conflict between this basic right and other citizens’ rights, which easily leads to violations of the other important legal interest of other citizens, the society or even the state when someone enjoys his freedom of speech.Recently many cases of being jailed for freedom of speech has aroused widespread concern especially in academic circles and stirred controversies among people of all fields.Whether the speech should become the object of criminal law and regulations or not? Whether speech is a kind of behavior or it belongs to the category of thought? How to distinguish the speech of thought to that of behavior? What is the boundary of freedom of speech in the criminal law? How to delineate various criminal penalty circles on speech? How to construct specific rules of criminal restriction on speech? How to balance the freedom of speech and other rights such as the right of reputation, privacy, public safety, public order, national security and other important legal rights and interests? How to resolve the conflict between values of freedom and order?The significance of this paper is mainly reflected in the following aspects:Firstly, to make it clear the types of speech and the scope of the freedom, be helpful for citizens to exercise the freedom correctly, and to a certain degree, make the freedom of speech be able to guarantee the right of freedom of speech provided by the Constitution and avoid the overuse of it.Secondly, to clarify the relationship among freedom of speech, criminal law and crime, provide for the law enforcement agencies, especially public security departments and judicial organs a theoretical guidance which can be helpful for them to correctly differentiate the legal use of rights, infringement and crime.Thirdly, to explain the difference between critical remarks and libel, ensure the proper use of rights of criticism, suggestion, and surveillance and reporting, dredge the channels of expression of public opinion in order to make it become the important foundation of democracy and rule of law.This paper starts with the brief introduction of freedom of speech and the nature of speech, then compares the legal security with the legal boundary of the freedom, analyzes different types of speech in detail, deeply discusses the basic position and specific rules of criminal law interfering with speech, in order to clarify the complex relationship among freedom of speech, criminal law and crime in favor of expression of citizens’ opinions, ensure the correct and full use of freedom of speech, provide guidance for the public security departments and judicial organs to understand and grasp the boundary between freedom and crime, which will be expensed and deeply explained by comparative research method. The article is composed of five chapters not including the introduction and conclusion, and there are about110,000words in this paper.Chapter One on the Freedom of SpeechThis part mainly introduces the concept, value basis and legal restriction of freedom of speech, which is the foundation of the paper. It firstly analyzes the definition and components of speech, elaborates the form factors (including physical factors and human factors) and speech auxiliary (support) factors of the speech itself. The article explores the legal expression and theoretical definition of freedom of speech in both national law and international law, and explains the nature of it, on the basis of which, the article introduces briefly the value basis of freedom of speech. At the end of the chapter, according to the international conventions and domestic laws, it thoroughly summarizes the legal restrictions on freedom of speech in specific terms and the reason, and puts forward the specific types of legal restriction on freedom of speech.Chapter Two Regulation of Criminal LawAs the last means of protection of rights, criminal law is no doubt an exactly important way to restrict the freedom of speech. Nevertheless, in terms of the legal character of criminal law, it should be quite prudent to use it. This chapter mainly discusses whether speech could be the object of criminal law, the basic rules of the regulation of criminal law and determine the specific factors which decide the legal boundary of speech within criminal law. In view of criminal object can only be behavior, it is important to get straight whether the speech is behavior or thought. In this part academic standard differentiating behavior and speech is logical starting point to reflect the defects of speech and action dichotomy in United States law which admits that speech is a special kind of behavior on the basis of control theory, but denies that behavior does necessarily narrow the freedom of speech down and that the degree of the freedom of speech decided by the boundary among speech, behavior and thought. Based on what abovementioned, this part deeply explains the basic foundation and specific rules of regulations of criminal law on freedom of speech, advocates principles of legal interests balance, proportion and the classified processing, and puts forward that various factors should be taken into consideration on the criminal regulation of speech and the discretion of penalties of speech crimes.Chapter Three Sedition and Its Criminal LiabilityIt is known as the "the last battlefield for free speech theories" whether inflammatory speech should be protected as freedom of speech and be controlled strictly. Inflammatory speech often goes far away from the common value, which easily causes crime and stirs up controversies. This chapter explores the nature of inflammatory speech in criminal law, selectively analyzes the judgment standard of its social harm and theoretically explains subjective and objective characteristics and judicial cognizance standard of related crimes, according to the typical cases of sedition and freedom of expression of tensions, in combination with the current criminal law. On the basis of above mentioned, it puts forward that paying more attention on the inflammatory speech in group events and its and political tolerance should be the basic criminal policy of regulation on inflammatory speech of criminal law.Chapter Four Threatening Remarks and Its Criminal ResponsibilityWhen people communicate with speech, the situation often happens that one side emits ruthless words which usually contain evil intent causing the other one serious psychological effects or extreme nervousness. This chapter discusses slightly about the threatening speech, theoretical arguments on its conviction of crime, behavior, judicial cognizance and punishment. This part firstly defines the intimidation and threatening remarks, undertakes relatively thorough analysis on threatening remarks, on basis of which, this chapter discusses the advantages and disadvantages of consider intimidation as crime, which ends up with the opinion that it is inappropriate to set up an independent crime of intimidation. The paper makes thorough analysis on the objective and subjective characteristics of threatening remarks, then puts forward that fear caused by threatening comments should be judged on the standard of ordinary people in society and the victim’s psychological bearing capacity should be considered. Moreover the paper makes theoretical response to common arguing comments on threatening remarks.Chapter Five Reputation-damaging Speech and Its Criminal LiabilityReputation-damaging speech is a kind of speech causing damage to others’ reputation, and the judicial cognizance of it should base on the balance of freedom of speech and citizens’ rights of reputation. Herein analyzes the reputation and its scope firstly. Then defines the reputation-damaging speech which contains four features:publicity, certainty of object, negativity and intention. It also analyzes the relationship between reputation-damaging speech and freedom of speech, and concludes that both right of reputation and freedom of speech are basic constitutional rights and that the relations between them should be handled carefully and properly by balance of value and neither of them is in priority. The criminal nature of reputation-damaging speech is analyzed from the behavior of objects, behavior factor, form of liability and plea and on this basis limitation of criminal penalty on reputation-damaging speech is herein explained. And the author suggests that conflicts between freedom of speech and basic rights of reputation should be balanced though each case, and the criminal law should be considered prudent when it is used to intervene critical remarks, especially the need for strict control of praise or blame speech prosecution conditions, no one shall make misuse of public power encroaching on citizen’s freedom of speech and the right of supervision, the right to criticize and suggestion.