Departmental Bulletin Paper 表現の自由の保障における表現者の意思の役割 -米国憲法修正1条における言論者の意思をめぐる解釈論を手がかりとして-

海野, 敦史

95 ( 1-2 )  , pp.75 - 162 , 2015-09-25 , 長崎大学経済学会
This paper addresses the legal role of the intent possessed by the actor of expression protected by the“freedom of expression”that is assured under the Constitution of Japan. For this purpose, it refers to the relevant arguments in the United States, where freedom of speech is protected by the First Amendment of the U.S. Constitution. Having carefully examined the arguments, this paper comes to the conclusion that the relationship between the intent of the actor of expression and the possible regulations on expression can basically be determined through case-by-case analysis. Namely, the intent itself is protected as ensuring freedom of thought under the Constitution of Japan, but is not, in principle, a main factor in determining the extent to which such regulations may be justified. This is partly due to the fact that the extent to which the intent of the actor of expression may harm its receiver may vary depending on the content, situation and manner of the expression. However, the intent can play a supplementary role in balancing legal interests between the actor of expression and its receiver. Particularly, the necessity to consider the intent in ensuring freedom of expression can be advanced from the perspective of protecting fundamental rights of the actor of expression when regulations are accompanied by a punishment under criminal law. It is also noteworthy that it has become necessary to consider not only the intent of what is expressed but also how it is expressed, due to the dramatic expansion and diversification of channels of expression in our current society. This is in large part due to the development of the Internet, which has given rise to such platforms as blogs and Social Networking Services (SNSs).Specifically, one can assume that the intent to express oneself using public, open-access channels of communications leads to potentially more harmful effects than that of expressions using private, limited-access channels.

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