The Spectrum of Protection Density for Civil Servants' Freedom of Speech

After listening to numerous presentations and panel discussions, and reviewing cases from Taiwan, Australia, and the United States, I believe today's topic can be broadly divided into several levels of discussion.

First, it is relatively uncontroversial that civil servants can, under certain circumstances, claim freedom of speech and serve as subjects of freedom of speech. At this point, a distinction must be made between official duties and non-official duties. Regarding official duties, as can be seen from Professor Huang's presentation materials, defining official duties in the narrowest sense requires statements to be produced in an official capacity or published by virtue of official duties. In such cases, regardless of whether academic theory considers a civil servant's speech to be part of public authority, or the situation mentioned by Professor Chang where a civil servant acts as a spokesperson or representative, freedom of speech cannot be claimed. I believe this part is uncontroversial. At the other end of the spectrum, even though an individual is a civil servant by day, their speech time, location, and content are entirely unrelated to their official duties. For this narrowest category of non-official speech, there is likewise little controversy in asserting that the degree of protection it receives under freedom of speech is identical to that of ordinary citizens.

The problem lies in the middle ground between these two extremes, which is the more troublesome area. The moderator just mentioned that "what constitutes official speech is the key to this issue," and indeed it is. This is a very difficult question to answer and has historically been a subject of considerable dispute in U.S. law. The Garcetti case represents an era where official speech was cast in its broadest terms, where a prosecutor's case memo was considered official speech. Many subsequently interpreted this to mean that any speech related to official duties is not protected by freedom of speech. However, this mindset is somewhat conservative and has faced criticism.

If we truly wish to examine whether there are other relevant cases for reference, there is another U.S. Supreme Court case from 2014: Lane v. Franks, which somewhat clarified the scope of Garcetti. In this case, a civil servant learned certain matters due to their official duties and was subpoenaed by the court to testify, stating during the testimony things known through their official position. Lower courts all held that this was clearly official speech and thus unprotected by freedom of speech. However, in the majority opinion authored by Justice Sotomayor, the U.S. Supreme Court substantially clarified just how broad narrowly defined official speech can be. She noted that not all speech related to official duties, or known by virtue of official duties, is devoid of freedom of speech protection. Discussing the issue within this context from a comparative law perspective, the scope within which civil servants can claim freedom of speech protection is expanded. Speech related to official duties, or known by virtue of official duties, but which does not constitute required official duties, may under certain circumstances claim the protection of freedom of speech. This point is worth pondering in the case of Lin Wen-wei. Lin seemed to have learned certain internal conditions of the correctional institution by virtue of his official duties or because of working within the institution, but the statements he published were not required official duties; therefore, they should be categorized in this middle ground rather than as the narrowest form of official speech.

Next, many speakers have introduced the standard of balancing interests, which I will not discuss at length. Regarding the appeal made by Professor Huang moments ago—that in the absence of whistleblower protection under current law, how should Articles 4 and 5 of the Civil Service Act be interpreted from a constitutional perspective—my opinions are as follows:

First, the Civil Service Protection and Training Commission's re-appeal decision should, in any event, address the issue of protecting civil servants' freedom of speech. In particular, there should be a discussion on how to purposively interpret Articles 4 and 5 of the Civil Service Act.

Second, whether speech related to official duties, or known by virtue of official duties, is protected by freedom of speech. Paragraph 2 of Article 4 of the Civil Service Act stipulates: "Without the permission of their superior, civil servants shall not arbitrarily issue statements concerning their official duties in a private capacity or in the name of an agency." This still appears impermissible because "statements concerning official duties" is very broad, seemingly encompassing any speech related to official duties or known by virtue of them. However, since we intend to adopt a constitutional narrowing and recognize that the middle ground can enjoy the protection of freedom of speech, it is presumably impossible to maintain that a civil servant's statements concerning official duties must invariably obtain a superior's permission, thereby adopting such the strictest prior restraint. I believe that "statements concerning official duties" should be narrowed down to the narrowest form of official speech—meaning official statements that require prior permission or cannot be published in one's own name, which must be official speech in the narrowest sense (produced in an official capacity or published by virtue of official duties). I think this is a viable path to consider.

Furthermore, this middle-ground speech still needs to be addressed from a managerial perspective, meaning it must return to abstract provisions such as "improper conduct and speech" or "damaging reputation" under Article 5 for a balancing of interests. When discussing the balancing of interests, there is also the allocation of the burden of proof; for instance, who bears the burden of proof regarding whether electric shocks occurred? I believe the burden of proof should rest upon the agency where the civil servant is employed. Moreover, since this case falls under whistleblowing, the public interest is high, and the evidentiary requirements placed upon public agencies are correspondingly elevated. In other words, the public agency must be able to prove the concrete damage caused by the speech to the agency. In other cases, abstract harm might be acknowledged, but in whistleblower cases of this nature, the harm must be concretely pointed out, demonstrating precisely what kind of obstruction was caused to administration.