文抄:Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 505-507 (1969)

「言論自由」的「言論」,是否只限於「文字」?

早陣子看過Texas v. Johnson, 491 U.S. 397(請參看舊文:<文抄:Texas v. Johnson, 491 U.S. 397, 419-420 (1989)>,意猶未盡,順藤摸瓜,追蹤其思路起源。

先不厭其煩地再從Texas v. Johnson詳引一大段:

“Johnson was convicted of flag desecration for burning the flag rather than for uttering insulting words. 2 This fact somewhat complicates our consideration of his conviction under the First Amendment. We must first determine whether Johnson’s burning of the flag constituted expressive conduct, permitting him to invoke the First Amendment in challenging his conviction. See, e. g., Spence v. Washington, 418 U.S. 405, 409 -411 (1974). If his conduct was expressive, we next decide whether the State’s regulation is related to the suppression of free expression. See, e. g., United States v. O’Brien, 391 U.S. 367, 377 (1968); Spence, supra, at 414, n. 8. If the State’s regulation is not related to expression, then the less stringent standard we announced in United States v. O’Brien for regulations of noncommunicative conduct controls. See O’Brien, supra, at 377. If it is, then we are outside of O’Brien‘s test, and we must ask whether this interest justifies Johnson’s conviction under a more demanding standard. 3 See Spence, supra, at 411. A third possibility is that the State’s asserted interest is simply not implicated on these facts, and in that event the interest drops out of the picture. See 418 U.S., at 414 , n. 8.

簡單說,就是要先裁定Johnson「燒國旗」的行為,是否一種「表達(某種訊息)」的行為,然後再視察州政府的法令是否限制其行為,云云。

The First Amendment literally forbids the abridgment only of “speech," but we have long recognized that its protection does not end at the spoken or written word. While we have rejected “the view that an apparently limitless variety of conduct can be labeled `speech’ whenever the person engaging in the conduct intends thereby to express an idea," United States v. O’Brien, supra, at 376, we have acknowledged that conduct may be “sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments," Spence, supra, at 409.

這段是重中之中。

雖然《憲法第一修正案》在字面上只禁止限制「言論」,但法院早已確立其保障並不限於「口頭或書面字句」。

In deciding whether particular conduct possesses sufficient communicative elements to bring the First Amendment into play, we have asked whether “[a]n intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it." 418 U.S., at 410 -411. Hence, we have recognized the expressive nature of students’ wearing of black armbands to protest American military involvement in Vietnam, Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 505 (1969); of a sit-in by blacks in a “whites only" area to protest segregation, Brown v. Louisiana, 383 U.S. 131, 141 -142 (1966); of the wearing of American military uniforms in a dramatic presentation criticizing American involvement in Vietnam, Schacht v. United States, 398 U.S. 58 (1970); and of picketing about a wide variety of causes, see, e. g., Food Employees v. Logan Valley Plaza, Inc., 391 U.S. 308, 313 -314 (1968); United States v. Grace, 461 U.S. 171, 176 (1983).
Especially pertinent to this case are our decisions recognizing the communicative nature of conduct relating to flags. Attaching a peace sign to the flag, Spence, supra, at 409-410; refusing to salute the flag, Barnette, 319 U.S., at 632 ; and displaying a red flag, Stromberg v. California, 283 U.S. 359, 368-369 (1931), we have held, all may find shelter under the First Amendment. See also Smith v. Goguen, 415 U.S. 566, 588 (1974) (WHITE, J., concurring in judgment) (treating flag “contemptuously" by wearing pants with small flag sewn into their seat is expressive conduct). That we have had little difficulty identifying an expressive element in conduct relating to flags should not be surprising. The very purpose of a national flag is to serve as a symbol of our country; it is, one might say, “the one visible manifestation of two hundred years of nationhood." Id., at 603 (REHNQUIST, J., dissenting). Thus, we have observed:

[‘][T]he flag salute is a form of utterance. Symbolism is a primitive but effective way of communicating ideas. The use of an emblem or flag to symbolize some system, idea, institution, or personality, is a short cut from mind to mind. Causes and nations, political parties, lodges and ecclesiastical groups seek to knit the loyalty of their followings to a flag or banner, a color or design.[‘] Barnette, supra, at 632.

Pregnant with expressive content, the flag as readily signifies this Nation as does the combination of letters found in “America."
We have not automatically concluded, however, that any action taken with respect to our flag is expressive. Instead, in characterizing such action for First Amendment purposes, we have considered the context in which it occurred. In Spence, for example, we emphasized that Spence’s taping of a peace sign to his flag was “roughly simultaneous with and concededly triggered by the Cambodian incursion and the Kent State tragedy." 418 U.S., at 410 . The State of Washington had conceded, in fact, that Spence’s conduct was a form of communication, and we stated that “the State’s concession is inevitable on this record." Id., at 409.

以上一大段,是引用及討論案例。如有興趣,當可一一查看。

The State of Texas conceded for purposes of its oral argument in this case that Johnson’s conduct was expressive conduct, Tr. of Oral Arg. 4, and this concession seems to us as prudent as was Washington’s in Spence. Johnson burned an American flag as part – indeed, as the culmination – of a political demonstration that coincided with the convening of the Republican Party and its renomination of Ronald Reagan for President. The expressive, overtly political nature of this conduct was both intentional and overwhelmingly apparent. At his trial, Johnson explained his reasons for burning the flag as follows: “The American Flag was burned as Ronald Reagan was being renominated as President. And a more powerful statement of symbolic speech, whether you agree with it or not, couldn’t have been made at that time. It’s quite a just position [juxtaposition]. We had new patriotism and no patriotism." 5 Record 656. In these circumstances, Johnson’s burning of the flag was conduct “sufficiently imbued with elements of communication," Spence, 418 U.S., at 409 , to implicate the First Amendment."
Texas v. Johnson, 491 U.S. 397, 402-406 (1989) (Opinion of BRENNAN, J.)

最後裁定:事發當時是一個政治集會,在這情況下「燒國旗」,很明顯是帶有政治色彩的一種表達行為,是一種帶有象徵意味的「言論」。

* * *

引文中提到另一件案:
Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969)

案件概要如下:
有學生決定戴黑臂章回校,以示反對越戰。此舉違反校規,被停學,直至抗議期完結。後來輾轉打官司至最高法院。

詳情可參看維基,也宜細閱判詞,以下是法官Abe Fortas的判詞摘錄:

“The District Court recognized that the wearing of an armband for the purpose of expressing certain views is the type of symbolic act that is within the Free Speech Clause of the First Amendment. See West Virginia v. Barnette, 319 U.S. 624 (1943); Stromberg v. California, 283 U.S. 359 (1931). Cf. Thornhill v. Alabama, 310 U.S. 88 (1940); Edwards v. South Carolina, 372 U.S. 229 (1963); Brown v. Louisiana, 383 U.S. 131 (1966). As we shall discuss, the wearing of armbands in the circumstances of this case was entirely divorced from actually or potentially disruptive conduct by those participating in it. It was closely akin to “pure speech" which, we have repeatedly held, is entitled to comprehensive protection under the First Amendment. Cf. Cox v. Louisiana, 379 U.S. 536, 555 (1965); Adderley v. Florida, 385 U.S. 39 (1966).

撮寫地方法院的裁斷。簡而言之,是指出「戴臂章」的行為並無任何「擾亂秩序」之處,跡近「純粹的『言論』」,受《憲法第一修正案》保障。

First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holding of this Court for almost 50 years. In Meyer v. Nebraska, 262 U.S. 390 (1923), and Bartels v. Iowa, 262 U.S. 404 (1923), this Court, in opinions by Mr. Justice McReynolds, held that the Due Process Clause of the Fourteenth Amendment prevents States from forbidding the teaching of a foreign language to young students. Statutes to this effect, the Court held, unconstitutionally interfere with the liberty of teacher, student, and parent. 2 See also Pierce v. Society of Sisters, 268 U.S. 510 (1925); West Virginia v. Barnette, 319 U.S. 624 (1943); McCollum v. Board of Education, 333 U.S. 203 (1948); Wieman v. Updegraff, 344 U.S. 183, 195 (1952) (concurring opinion); Sweezy v. New Hampshire, 354 U.S. 234 (1957); Shelton v. Tucker, 364 U.S. 479, 487 (1960); Engel v. Vitale, 370 U.S. 421 (1962); Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967); Epperson v. Arkansas, ante, p. 97 (1968).

這是名句出現之段落。

In West Virginia v. Barnette, supra, this Court held that under the First Amendment, the student in public school may not be compelled to salute the flag. Speaking through Mr. Justice Jackson, the Court said:

[‘]The Fourteenth Amendment, as now applied to the States, protects the citizen against the State itself and all of its creatures – Boards of Education not excepted. These have, of course, important, delicate, and highly discretionary functions, but none that they may not perform within the limits of the Bill of Rights. That they are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.[‘]319 U.S., at 637.

On the other hand, the Court has repeatedly emphasized the need for affirming the comprehensive authority of the States and of school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools. See Epperson v. Arkansas, supra, at 104; Meyer v. Nebraska, supra, at 402. Our problem lies in the area where students in the exercise of First Amendment rights collide with the rules of the school authorities."
Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 505-507 (1969) (Opinion of FORTAS, J.)

其實我只想舉當中的一句:

「[不論]學生或教師,都沒有在校門前放下言論或表達自由之憲法權利。([neither] students [n]or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.)」

這是保障兒童權利的名句,但在本文而言,這一部份尤為重要:「言論或表達自由之憲法權利(constitutional rights to freedom of speech or expression)」

所謂「言論」,其實不限於文字,而可引申至各種形式的意見之表達。如果「言論自由(freedom of speech)」不夠清楚,不妨說「表達自由(freedom of expression)」;而究其底蘊,則可說是「思想/意見自由(freedom of thought/opinion)」。

不論以文字、圖像、聲音、雕刻、動作或任何其他形式表達,其實都是將思想和意見形之於外的行為,其意義相當,理應受同樣保障。

此說其實也見於《世界人權宣言(Universal Declaration of Human Rights)》:

「Article 18.
Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.
第十八條
人人有思想、良心和宗教自由的權利;此項權利包括改變他的宗教或信仰的自由,以及單獨或集體、公開或秘密地以教義、實踐、禮拜或戒律表示他的宗教或信仰的自由。

Article 19.
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
第十九條
人人有權享有主張和發表意見的自由;此項權利包括持有主張而不受干涉的自由,和通過任何媒介和不論國界尋求、接受和傳遞消息和思想的自由。」
英文版:http://www.un.org/en/documents/udhr/
中文版:http://www.un.org/zh/documents/udhr/

如果說:「一種意見以文字表達,受憲法保障;但同一種意見以行動(或其他形式)表達,則不受憲法保障。」這無疑是荒謬的。

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