美國集會遊行自由權保障之歷史發展──兼論我國集會遊行與公共秩序之折衝

The Historical Development of the Right of Freedom of Assembly in the United States: A Comparative Study on Tensions and Conflicts between Public Order and Freedom of Assembly in Taiwan

本文介紹美國集會遊行歷史發展與法制實踐，並探討今日我國因集會遊行法律保障不周及執法不彰下，公共秩序與集會遊行自由權兩相無法維護之困境。美國自19世紀末集會遊行事前許可制確立後，集會遊行權利從此限縮。但同時以聯邦最高法院為首的各級法院不斷從判例累積各種原則，諸如「內容審查禁止（雙軌理論）」、「迫在眉睫非法行為」、「公共論壇學說」等，使集會遊行保障與限制規範與時俱進。相較美國，我國現今集會遊行法制雖同樣嚴格而備受批評，然實踐上法律與執法間嚴重落差。於理解集會遊行必然顛覆之本質後，解決之道建議法規面放寬集會遊行管制，執法面在比例原則下迅速落實，並課與國家積極保障人民參與集會遊行義務。

This article introduces the history and legal practice of American outdoor assembly, and discusses the issues of impaired assembly right as well as damaged public order due to the inadequate legal protection and ineffective law enforcement in Taiwan. Since the U.S. Supreme Court recognized the constitutionality of permit requirements in 19th century, the right of freedom of assembly has been restricted. However, thanks to the efforts of the U.S. Supreme Court and its subordinate affiliated courts, a variety of principles and rules of law, such as “Content-Neutral Restrictions (Two-Track Theory)”, “Imminent Lawless Action Test”, “Public Forum Doctrine”, etc. were established to help stabilizing and clarifying the right. Compared with the American counterparts, we also have often been blamed by strict legal restrictions on freedom of assembly. Nevertheless, as for the conformity between these restrictions and their enforcement, there is a huge gap between them. After recognizing the disruptive nature of outdoor assembly, three possible solutions may be considered. First of all, the current laws and regulations are severely strict and do not comply with the requirements of people today. Secondly, the exercise of police power should be quick while in compliance with proportionality to respond any substantial crime and violence during the assembly event. Thirdly, the assembly law could impose an affirmative obligation on the government to protect assemblies from external and internal violence.