从自由到平等:美国言论自由的现代转型

From Liberty to Equality: The Modern Transition of American Freedom of Speech

自1960年代开始,美国言论自由开启了从经典时期向现代的转型。在色情作品、仇恨言论和竞选经费三个领域,言论自由分别与性别平等、种族平等和财富平等正面相遇。通过把"平等"价值引入言论自由这一转型,使色情作品、仇恨言论和竞选经费从单纯的自由问题变为平等与自由间的平衡;同时,为了促进平等,它还强调法律和政策应告别形式中立,必须向弱势群体有所倾斜。这一转型相当于一场言论自由的"新政",终结了言论自由的洛克纳时代,重塑了言论自由的范式和议程,并对当代言论自由的发展产生持续和深远的影响。

Since the 1960 s, American freedom of speech has started the transition from the classical period to the modern era, in which freedom of speech has encountered the question of equality in gender, race and wealth, respectively in the areas of pornographic works, hate speech and campaign funding. Under this transition, the introduction of "equality" into the freedom of speech has changed the pornographic works, hate speech and campaign fund from simply being questions of liberty to questions of balancing between liberty and equality. To promote equality, it has also stressed that instead of being "neutral," laws and policies should favor the disadvantaged groups and minorities. Such a transition amounts to a "New Policy" for freedom of speech, and has ended the Lochner era, reshaped and redefined the paradigm and the agenda, and has engendered an enduring and profound impact on the development of modern freedom of speech.