「思想の自由市場」理論の再構築 : 「言論の害悪」及び「言論と行為の区別」を分析視座として

抄録

The"Marketplace of Ideas"theory, articulated and explicated by Justice Holmes and Justice Brandeis of the Supreme Court in the early 20th century, has played a crucial role in the development of the free speech theory in America. The essential scheme of this theory, called the"Holmes/Brandeis tradition", serves as a basic framework for free speech thought even at the present time. However, this theory has some problematic tendencies: an underestimation of speech harm(harm done by speach) and belief in a rigid division of speech and conduct. Indeed, these tendencies are the products of the factual situation unique to that time, but they came to be called into question, as the scope of the protection under the First Amendment was expanded to include"peripheral"speech, which in the Holmes/Brandeis view used to be outside this protection. Against these tendencies, a new trend of criticism arose in the last decade. The critics in the 1980's advocated the need to trim the margin of free speech protection, claiming that speech does harm to the weak such as women and racial minorities, and the free speech system works to perpetuate the current disparity of power in the private sphere. To ameliorate the status quo, they call for speech regulation as a corrective measure. Inspired by this criticism, there came a series of movements to"reconstruct"the"Marketplace of Ideas"theory around 1990. The basic feature of them, exemplified in the works of Bollinger, Sunstein and Strauss, lies in the search for possibility that there might be some middle course, superior to either the"Holmes/Brandeis"approach or the approach of the critics of the 1980's. They squarely care about the speech harm and reconceptualize free speech by attenuating the sharp line drawn between speech and conduct. This enterprise is still in the embryonic stage and one needs to follow the further development for an evaluation. But at least for now, the"reconstruction"can be seen as a worthy one, carving out a new way in free speech thinking.