國立臺灣大學政治科學論叢

Abstract / Chinese PDF Download

This article discusses the decisions made by the U.S. Supreme Court regarding the free speech of public employees, and then applies the Court’s Inquires to analyze three events that took place in Taiwan. In Lane v. Franks (2014), the Court applies a three-step inquiry with the principles evolved from Pickering v. Board of Education (1968), Connick v. Myers (1983), and Garcetti v. Ceballos (2006), to decide whether public employee’s speech is entitled to the First Amendment protection. The first inquiry is whether the speech was pursuant to official duties. The First Amendment protection holds only when a public employee speaks as a private citizen and the speech itself must not be pursuant to his/her official duties. The second inquiry is whether the speech involved a matter of public concern. When a public employee speaks not as a citizen upon matters of public concern, he/she is not entitled to the First Amendment protection as well. Whether public employee’s speech addresses a matter of public concern depends on the content, form, and context. The final inquiry is whether the government as an employer had an adequate justification for treating the employee differently than any other member of the public. The First Amendment protection goes to public employee when the interest of his/her speech outweighs the government’s interest in efficiency and effectiveness. This article applies the above three-step inquiry to three events in Taiwan and argues that the government’s dispositions can be adequately justified for the cases of Kuo 〇〇 and Chen 〇〇. Kuo was the former acting director of the information division at the nation’s representative office in Toronto who was removed after writing a number of articles slandering Taiwan and Taiwanese and alleged that he exercised constitutionally protected free speech, while Chen was an employee of the Taichung Post Office who suffered adverse performance appraisal for raising concern over the uncomfortable workplace to the media and later lost his re-appeal case in the Civil Service Protection and Training Commission. However, this paper argues that the authorities overreacted slightly to the case of Shih 〇〇. Shih was the former deputy director-general at Taiwan’s Center for Disease Control and was accused of violating the Public Functionary Service Act for criticizing the U.S. visa-waive program and expressing his opposition about covering Chinese students under Taiwan’s national health insurance program.