| 英文摘要 |
In interpretation No. 744, Grand Justices in R.O.C. take the U.S. cases as reference, and be influenced by Justice Lin concurring opinions in interpretation No. 644, adopting a more stringent scrutiny-standard on expression-prior-restraint issues. Several Justices announce in advance that, in the future the new scrutiny-standard will applied in all expression-prior-restraint issues, Interpretation No. 414 standard on prior restraint of commercial speech and Interpretation No. 445 standard on time-place-and –manner regulation will be overruled quietly. This research has found that, Grand Justices had misunderstood the Scrutinystandard and contents of Prior Restraint Doctrine in the U.S. Although courts in U.S. usually said that “prior restraint of expression bearing a heavy presumption against it constitutional validity”, actually they didn’t take the strict scrutiny in all times, but turn back to the categorical approach on different contents and forms of expression. If there were any uniform standards in prior restraint doctrine, they may be: 1. there should be narrow, objective, and definite standards to guide the licensing authority, and 2. prompt judicial review. This paper will explain why U.S. courts can’t apply strict scrutiny in all cases: 1. prior restraint cover different categorical cases, the strict standard developed from the injunction on press is not suited for other situations; 2. In regard to public forums and designated public forum, some kind of administration is needed, and the administration can’t be unconstitutional in principle. |
