The Normative Boundary Of Free Speech

Should employees’ speech fall into the category of freedom of speech? Can freedom of speech provide protection for employee whistleblowing? Is there any applicable space for constitutional freedom of speech in private law relations? The cases of employee being dismissed for improper speech reveal the misunderstanding and theoretical dilemma of the issue of the normative boundary of freedom of speech in China’s academic community.The theory of advocating the expansion of the boundary of freedom of speech to private law relations has important enlightening significance,but there are some issues to be discussed: is freedom of speech a political freedom clause or a personal freedom clause in China’s Constitution? Is private speech more suitable for constitutional protection or routine legislative protection? Can the fundamental rights of the Constitution regulate private law relations? Only by clarifying these basic issues can we truly delineate the normative boundary of freedom of speech.The meaning of rights cannot be separated from their corresponding specific legal relationships,and constitutional relationships are greatly different from private law relationships between equal subjects.The core function of the Constitution is to control state power.As a fundamental right,freedom of speech is not an absolute right that can be asserted against any subject with relationships.Its normative goal is to protect important,vulnerable,and scarce public speech from illegal suppression by the government,rather than to protect all speech in various situations and relationships.Complex,diverse,and rich private speech can only be regulated by ordinary legislation,without the need to be included in the normative boundary of freedom of speech.Excessive expansion of the normative boundary of freedom of speech will cause unnecessary conflicts of rights,and even reduce the rigid protection of public speech in the Constitution.Freedom of speech should generally take the distinction between public and private as the normative boundary,and public speech should be strictly guaranteed by the high standards of freedom of speech to prevent infringement from the state;Private speech is defined outside the norms of freedom of speech,and the different legal relationships formed by private speech should be adjusted by corresponding departmental laws.There is no room for constitutional freedom of speech to be applied in private law relationships.In the field of labor law,the public private distinction model of extraterritorial workers’ speech has provided beneficial inspiration for China’s judicial practice.The conflict between workers’ freedom of speech and their duty of loyalty is a false proposition.The statements made by workers against employers do not fall within the scope of the Constitution’s freedom of speech protection,but are a civil interest.When hearing cases of worker speech,it is possible to consider the internal rules and regulations of the employer as the primary standard in judicial adjudication based on the principle of autonomy of private law.As a special type of speech by workers,whistling by workers has a stronger public welfare and risk nature,and is also difficult to adjust through the Constitution’s freedom of speech,which should be regulated by specialized legislation.