The petitioner, Chen Yuan-Chen, a street performer with a permit issued by Taipei City Government (under the visual arts category), engaged in street performance activities in the Ximending pedestrian area of Wanhua District from July to November 2014. Owing to "performing in unauthorized locations (not in accordance with the application) and using more space than the Regulations allow," records were kept by inspection members of the Department of Cultural Affairs of Taipei City Government (hereafter, the Department of Cultural Affairs) on multiple occasions. The Department of Cultural Affairs determined that he had violated the Taipei City Street Performer Arts and Cultural Activities Permit Regulations enacted by the Taipei City Government on April 27, 2005 (hereafter, the Permit Regulations), as well as the Taipei City Street Performer Arts and Cultural Activities Implementation Guidelines amended and promulgated by the Taipei City Government on February 6, 2014, effective from February 28 of the same year (hereafter, the Implementation Guidelines, repealed on April 10, 2018, and retroactively effective from the same month and year), and issued a decision on January 20, 2015 (Letter Beishiwenhuayishuzi No. 10430190301), recording five points against the petitioner (hereafter, the Original Decision). The petitioner had previously violated the Regulations three times in May, June, and July 2013, recorded twice by the Department of Cultural Affairs in a letter dated January 24, 2014, and three more times in December 2013, April, and May 2014, recorded twice by the Department in a letter dated July 23, 2014. The petitioner did not seek administrative relief for these decisions. However, due to the accumulation of warnings reaching more than nine points in these two letters and the Original Decision, the Department revoked the petitioner's permit and prohibited him from reapplying within one year from the revocation date. The petitioner contested this decision by filing an administrative complaint, which was dismissed and, therefore, proceeded to administrative litigation. The Taipei High Administrative Court dismissed the lawsuit with Judgment No. 757 in 2015, and the petitioner appealed. The Supreme Administrative Court dismissed the appeal with Judgment No. 653 in 2016, deeming the appeal not in conformity with the law. As a result, the Taipei High Administrative Court's judgment shall be the final judgment. The petitioner argued that Article 4 Paragraph 1 and Article 6 Paragraph 1 of the Permit Regulations applied in the final ruling violated his right to work protected by Article 15 and the principle of legal reservation under Article 23 of the Constitution, requesting an interpretation from this Court. The petitioner's request is satisfied with the requirements for a constitutional interpretation by the people under Article 5 Paragraph 1 Subparagraph 2 of the Constitutional Interpretation Procedure Act (hereafter, the Interpretation Act), and we grant his petition.
The petitioner petitioned for a constitutional interpretation owing to the revocation of his performance permit and claimed infringement on his fundamental rights. The issuance of an activity permit is a prerequisite for revoking it. Article 4 Paragraph 1 of the Permit Regulations stipulates: “Street performers must apply for an activity permit to the competent authority before engaging in arts and cultural activities in public spaces in the city." (referred to as the disputed regulation one), and the first part of Article 6 Paragraph 1 provides: " Street performers who have obtained an activity permit may engage in arts and cultural activities in public spaces in the city." (referred to as the disputed regulation two). These are the basis for the issuance and effect of a performance permit, as applied in the final judgment, and, therefore, should be the subject of review. Article 5 Paragraph 1 also states: " To process the application mentioned in the preceding article, the competent authority may, if necessary, notify the street performer to explain, operate, demonstrate, or perform at a designated venue. After passing the evaluation, an activity permit will be issued." (referred to as the disputed regulation three), a specific provision for the preliminary review related to the issuance of the performance permit under disputed regulation one, has an inseparable normative relationship with disputed regulations one and two. Therefore, all should be included in the scope of review (see Judicial Yuan Interpretations No. 709 and No. 739) and observed altogether (refer to Judicial Yuan Interpretations No. 577, No. 755, and No. 764). Hence, this interpretation is made for the following reasons:
The purpose of the Taipei City Government in establishing and implementing the Permit Regulations and Implementation Guidelines is "to encourage the diverse development of arts and cultural activities in Taipei City, to cultivate the public's habit of participating in paid activities, to integrate arts and culture into the lives of the public, to enrich the humanistic landscape of the city's public spaces, and thus to permit artists to engage in street arts and cultural activities" (see Article 1 of the Permit Regulations). The defined arts and cultural activities include "engaging in chargeable drama, mime, clown performances, dance, singing, musical instrument playing, magic, folk arts, juggling, puppetry, poetry reading, painting, crafts, sculpture, performance art, environmental art using non-permanent media or water-soluble paints, video recording, photography, and other on-site creative activities related to arts and culture" (see Article 2 Paragraph 3 of the Permit Regulations). Since street performers can charge fees for their performances to the audience (see Article 1 and Article 2 Paragraph 3 of the Permit Regulations and Article 7 Paragraph 5 of the Implementation Guidelines), choosing to work as a street performer is a way of livelihood protected by the right to work under Article 15 of the Constitution. Moreover, the arts and cultural activities regulated for street performers fall within the domain of artistic expression, a component of freedom of expression, thus protected under Article 11 of the Constitution (see Judicial Yuan Interpretation No. 756). Additionally, as arts showcase individual capability and serve as an important indicator of human civilization, street performers represent an autonomous presentation of folk artistic skills. Through artistic performance activities, individuals express their creative ideas and achieve self-realization, seeking intellectual and emotional communication, understanding, and resonance with the audience based on the type and expression of their artistic creations. Therefore, the full expression of artistic freedom not only falls within the scope of freedom of expression protected by Article 11 of the Constitution but also constitutes high-value speech deserving of heightened constitutional protection.
1. Disputed regulations one, two, and three violate the principle of legal reservation under Rechtsstaat.
First, street performers' arts and cultural activities, by using streets and other public spaces beyond the regular scope, establish special utilization of public property. To maintain social order, such activities must be regulated and permitted before they can be carried out. However, this does not change the fact that street performers' arts and cultural activities remain protected under the Constitution's occupational freedom and freedom of artistic expression, similar to outdoor rallies and marches using streets, which also constitute special utilization of public property and are protected under the Constitution's freedom of assembly. Therefore, if the regulation of street performers' arts and cultural activities restricts people's occupational freedom and freedom of artistic expression, it must be done through laws or regulations delegated by law in accordance with the principle of legal reservation under Rechtsstaat. Second, Taiwan implements local self-government at the county(city) and special municipality levels. Local councils exercise legislative power, with council members elected by residents. The head of the local government exercises executive power and is also elected by the local populace (see Article 9 of Additional Articles to the Constitution and Chapter 3, Section 4 of the Local Government Act). Thus, under Rechtsstaat, the principle of legal reservation applies to matters of local self-government that involve restricting the freedoms and rights of residents. This means that such restrictions should be regulated by self-government ordinances passed by the local legislative body and promulgated by the respective administrative authorities, as stipulated in Article 28 Paragraph 2 of the Local Government Act, or by self-government regulations enacted by local administrative authorities through explicit delegation of self-government ordinance.
The spaces where street performers are allowed to engage in arts and cultural activities generally include sidewalks, plazas, and green spaces, all of which fall under local self-government (see the Local Government Act, Article 18 Subparagraph 4 Item 2, Subparagraph 6 Item 5, Subparagraph 10 Item 1, Article 19 Subparagraph 4 Item 2, Subparagraph 6 Item 5, and Subparagraph 10 Item 1). Therefore, regulating street performers' arts and cultural activities is undoubtedly a matter of local self-government. The disputed regulations one and two, requiring street performers to obtain a performance permit from the competent authority for using public spaces for arts and cultural activities, and disputed regulation three, requiring street performers to explain, operate, demonstrate, or perform at a designated location for permit issuance upon review, are restrictions on people's occupational freedom and freedom of artistic expression. According to the principle of legal reservation under Rechtsstaat mentioned earlier, these should be enacted by self-government ordinances passed by local legislative bodies or by self-government regulations expressly delegated by self-government ordinances. However, disputed regulations one, two, and three, merely self-government regulations issued by a local administrative agency, neither passed by a local legislative body nor authorized by a self-government ordinance, contravene the principle of legal reservation under Rechtsstaat.
2. Disputed regulations one, two, and three, in terms of limiting street performers' qualifications and capabilities, infringe upon the freedom of occupational choice, but the restrictions on the use of public spaces do not violate the principle of proportionality.
Article 15 of the Constitution protects people’s right to work, including occupational freedom. Due to their different nature, restrictions on occupational freedom are subject to varying standards of permissibility under the Constitution. Regarding the subjective conditions for choosing a profession, such as the individual's professional capabilities or qualifications required for engaging in a specific occupation (knowledge, degrees, physical abilities, etc.), if the legislators seek to regulate them, the purpose must be to pursue important public interests. The means must have a substantial connection to achieving that purpose, in order to satisfy the requirements of the proportionality principle (see Judicial Yuan Interpretations No. 749 and No. 778).
Street performers, a traditional occupation involving street performances for livelihood, are among the options for exercising occupational freedom. Establishing the Permit Regulations encourages and regulates chargeable arts and cultural activities, promoting the diverse development of arts and cultural activities in Taipei City. Disputed regulations one, two, and three, by reviewing the explanation, operation, demonstration, or performance of those intending to engage in street arts and cultural activities in public spaces in Taipei City, and issuing activity permits upon passing the review, impose certain restrictions on the capabilities and qualifications of applicants, essentially scrutinizing the skills of street performers. This involves limiting the subjective conditions for individuals choosing to work as street performers in public spaces in Taipei City. The intended purpose appears to prevent those with insufficient skills from engaging in arts and cultural activities on the streets in order to provide quality entertainment to Taipei City residents, which, while legitimate for pursuing public interests, differs from the rationale behind reviewing the qualifications of professional and technical personnel or other skilled workers, who are inspected to protect people's life, health, property, or other important legal interests. Therefore, it is challenging to view it as an important public interest. As a result, disputed regulations one, two, and three's restrictions on subjective qualifications and capabilities do not meet the principle of proportionality, conflicting with the spirit of Article 15 of the Constitution, which protects the freedom of occupational choice.
Regarding restrictions on the methods, time schedules, locations, and scope of practices, it is constitutional if the restrictions are to pursue legitimate public interests and a reasonable relationship between the restrictions and the fulfillment of the purpose exists (see Judicial Yuan Interpretation No. 802). While street performers' rights to engage in arts and cultural activities in public spaces are protected under the Constitution, the impact of their activities on the normal use of public spaces must remain within reasonable and permissible limits. The competent authority regulates the time and location for street performers to use public spaces. Disputed regulations one, two, and three review the suitability of street performers engaging in arts and cultural activities in designated public spaces. Although these regulations restrict the activities of street performers, thereby limiting their freedom to work, the restrictions only pertain to the methods, times, locations, and scope of their professional activities. These measures are necessary to maintain the proper use, order, and safety of public spaces and align with legitimate public interests, thereby not violating the principle of proportionality.
3. Disputed regulations one, two, and three, in terms of reviewing the content of arts and cultural activities, conflict with the spirit of Article 11 of the Constitution, which protects freedom of artistic expression, regarding the review of suitability for performance in designated public spaces, it does not contradict with the principle of proportionality
Public spaces where street performers are allowed to conduct arts and cultural activities under Article 2 Paragraph 1 of the Permit Regulations are traditionally public forums where people usually have the freedom to express opinions and communication. However, if street performers engage in arts and cultural activities at government-designated locations and times exceed the regular use of public spaces, they must seek permission. While the government must maintain the general public's regular use of public spaces in enacting regulations for street performers' arts and cultural activities, it should also ensure that control over special uses is exercised with minimal interference in the content of expression, thus safeguarding the freedom of performance for street performers. Governmental control measures should only involve content-neutral regulations, such as the timing, location, and manner of performances, aimed at pursuing legitimate public interests without intending to suppress the content of expression. Such measures may only impose incidental restrictions on the content of expression and provide alternative avenues for expression to meet the requirements of the proportionality principle. Direct interventions in the content of performances (including topics, viewpoints, or quality) must pass strict scrutiny review standard, which aims for particularly important public interests with minimum interference as the least intrusive means. Thus, it can be concluded that the measures are closely related to achieving the intended purpose without violating the principle of proportionality.
Disputed regulation three, requiring street performers to explain, operate, demonstrate, or perform at a designated location for permit issuance after review, involves reviewing the performance quality or skill capability, thereby regulating the content of artistic activities, which should be under strict scrutiny review standard. The parts related to content-neutral regulations, such as time, location, and manner, should be under the aforementioned intermediate review.
The assessment of artistic value is subjective to individual audiences, and the government cannot replace personal judgment with public authority. The government's criteria for artistic evaluation may not necessarily be more credible than individuals' judgments. Even if the audience does not favor street performers' arts and cultural activities due to insufficient skills, it does not significantly harm public welfare. As a result, disputed regulations one, two, and three, involving the review of artistic activity content, hardly meet the requirements for particularly important public interests, conflicting with the spirit of Article 11 of the Constitution, which protects freedom of artistic expression. It is not going without saying that if the content of artistic activities interferes with public order or violates other laws (e.g., the Noise Control Act), relevant laws already provide such regulations.
Moreover, disputed regulations one, two, and three, regarding content-neutral restrictions on suitability for performance in designated public spaces, do not contain hidden motives to suppress content of expression. They only incidentally restrict expression content and still provide applicants with ample opportunities to showcase their performance capabilities and demonstrate content, and therefore, not contradict with the principle of proportionality.
4. Dismissed Claims
Except for disputed regulations one, two, and three, the petitioner's claims of unconstitutionality concerning other articles of the Permit Regulations and Implementation Guidelines, either have not been applied in the final judgment or do not specifically indicate their conflicts with the Constitution, do not meet the requirements outlined in Article 5 Paragraph 1 Subparagraph 2 of the Interpretation Act. According to Paragraph 3 of the same Article, these claims should be dismissed.
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*Translated by Yen-Chi Liu.