作为政治自由的言论自由

The First Amendment is an Absolute

《联邦宪法》第一修正案是美国人民作出的最重大的政治声明,但有关其含义一直聚讼纷纭,绝对论和权衡论至今争论不休,各理论派别内部也歧义纷纷。布莱克大法官仅从修正案的字面语句出发,认为第一修正案禁止任何针对言论的立法。哈兰大法官批判了这种主张,并提出一种更理论化的权衡论。第一修正案保障的自由不等于没有规制,它保障的不是"说话的自由",而是人民赖以"统治"的思想和交流活动的自由,并最终指向人民自治的政治自由。在这个意义上,第一修正案是绝对的。

The First Amendment to the Constitution of the United States is the most significant political statement which the American people have made. But the discussion about the meaning of the First Amendment is still divided. The debate between the absolutist and the balancers is still ongoing,and there are many ambiguities within the various theories. Mr. Justice Black’s absolutist thesis is in the sense that the First Amendment means what it say. Mr. Justice Harlan has refuted this thesis,and offered a new and more theoretical version of the balancing doctrine. The freedom that the First Amendment protects is not,however,an absence of regulation. It does not protect a freedom to speak,but protects the freedom of the activities of thought and communication by which the people govern,and ultimately points to the political freedom for the people to govern themselves. In that sense,the First Amendment is an absolute.