Note: 
This summary constitutes no part of the Judgment but is prepared by the Department of Clerks for the Constitutional Court only for the readers' reference.
Original paragraph numbers that the summarized texts correspond to are put into lenticular brackets after each paragraph. 
In case of any conflict of meaning between the Traditional Chinese version and the translated English version, the Traditional Chinese version shall prevail.

 
Headnotes

    Article 140 of the Criminal Code is partly unconstitutional for violating the protection of freedom of speech. 

    The TCC applied intermediate scrutiny and ruled that the first half of the provision, which punishes the offense of insulting an on-duty public official (civil servant), is constitutional so long as it is construed as limited to the insults that are to the extent of hindering the public official's discharge of legal duties. The TCC further applied strict scrutiny and ruled that the second part of the provision, which punishes the offense of insulting the discharge of a public official's legal duty, is unconstitutional for imposing disproportionate restrictions (i.e., criminal punishment) on people's speeches directed toward governmental power. 

Background Note

    Article 140 of the Criminal Code stipulates: "A person who insults a public official during the discharge of his or her legal duties or publicly makes insults about the discharge of such legal duties shall be sentenced to imprisonment for not more than one year, short-term imprisonment, or a fine of not more than one hundred thousand New Taiwan Dollars."^[1] A question arises as to whether imposing criminal punishment for insulting on-duty public officials or publicly insulting the discharge of their legal duties is compatible with the constitutional protection of freedom of speech.  

    There are five petitioners in this case. One is a judge from the Changhua District Court who questioned the constitutionality of the provision when hearing relevant criminal cases, and the other four are defendants who were found guilty under the disputed provision. The petitioners argued that Article 140 of the Criminal Code infringes on freedom of speech by not conforming to the principles of clarity of law, proportionality in sentencing, equality, and proportionality. In addition, some of the petitioners filed constitutional complaints against their final court decisions. The petitioners' cases were consolidated and argued on December 26, 2023.
 

Summary of the Judgment 

Holding

1. The January 12, 2022 version of Article 140 of the Criminal Code (hereinafter the "disputed provision") stipulates that "A person who insults a public official during the discharge of his or her legal duties or publicly makes insults about the discharge of such legal duties shall be sentenced to imprisonment for not more than one year, short-term imprisonment, or a fine of not more than one hundred thousand New Taiwan Dollars." In the part where the offense of insulting a public official is concerned, its punishment should be limited to insults with the  mens rea to obstruct the discharge of a public official's duty and to the extent of hindering it. Within this scope, said part of the provision conforms to the protection of freedom of speech under Article 11 of the Constitution.
2. The part of the disputed article concerning the offense of insulting the discharge of a public official's legal duty contradicts the protection of freedom of speech under Article 11 of the Constitution. The part should cease to be effective from the day of this Judgment. 
3. In terms of the constitutional complaint of Petitioner IV and V, Taiwan High Court Criminal Judgment 111-Shang-Yi-33 (2022) shall be quashed, with its matters remitted to the Taiwan High Court. 
4. The rest of Petitioner I's constitutional complaint shall be dismissed. 

Reasoning

1. The standard of review and constitutional rights pertaining to the review:
        Article 11 of the Constitution dictates that the people's freedom of speech must be protected. However, such protection is not absolute. The legislators may, with consideration of the constitutional development and socio-historical context of the country, establish different scopes of protection and limitations for different types of speeches. Speeches publicly discussing government policy and regulations, criticizing the exercise of governmental power, or evaluating the performance of government agencies and the civil service, should be highly protected by the Constitution, because they serve important functions such as forming public opinions, overseeing the implementation of policies, and practicing democracy. To carry through the principles of the liberal democratic constitutional order, the State should remain as neutral as possible when it comes to speeches concerning public affairs. The content and viewpoint of such speeches should be allowed to compete and engage in the marketplace of ideas. The State should be more lenient with the people's choice of words and expression of emotions, rather than suppressing dissenting opinions directly by criminal measures. 【25-27】
       The disputed provision punishes the offense of insulting a public official during the discharge of duty or the offense of publicly insulting the discharge of such duty. The elements of these offenses can be distinguished from each other, but with "insult" as their core element. The disputed provision imposes content-based regulation and subsequent punishment on people's negative opinions, and might further involve censorship. It is not merely a restriction on the speech's occasion, place, or means of issuance. Therefore, this Court should apply intermediate scrutiny when reviewing the offense of insulting a public official during the discharge of duty (hereinafter "Part A") and apply strict scrutiny when reviewing the offense of publicly insulting the discharge of such duty (hereinafter "Part B").【28】
2. In terms of Part 1 of the Holding:
       The object of legal protection (Rechtsgut) under Part A included the sanctity of the civil service, which is listed in the provision's legislative purpose. Following the views of judicial practice and relevant authorities, it could also include the public official's reputation and the performance of official duties. 【30】
   (1) Review of the purpose of Part A: 
       In terms of the public official's reputation, under a systematic approach of statutory interpretation, the disputed provision's purpose is to protect governmental interests during the public official's discharge of duty instead of protecting personal interests. Therefore, the social reputation and dignity in reputation of individual public officials are not the object of legal protection of Part A. 【33-34】
       The sanctity of the civil service, listed as a purpose of the legislation during the disputed provision's implementation in 1935, entails the unchallengeable sanctity of the civil service and its official duties. However, such a purpose is abstract in its contents and reflects an antiquated point of view. It clearly clashes with the purpose of freedom of speech, which is the supervision of the government and the development of democracy. It is also incompatible with the liberal democratic constitutional order. For these reasons, the sanctity of the civil service should not be considered as the object of legal protection under the disputed provision.【36】
       In terms of the performance of official duties, a person insulting a public official during the discharge of duty does create mental stress for the official, making the official reluctant to perform or postpone duties. This would indeed hinder the pursuit of public interest or rights of the persons involved. It is appropriate for Part A to list the performance of official duties as its object of legal protection. However, to avoid the provision from overreach, it should be limited to insults that could substantively hinder the performance of official duties.【38-40】
   (2) Review of the means of Part A:
       On-site insult of a public official constitutes the offense of Part A when it is done with the  mens rea of obstructing official duty. When deciding on individual cases, such  mens rea should not be found merely based on the fact that an insulting speech was issued. The State should be, to some extent, more lenient with speeches that were issued merely to express negative feelings toward detriments or suspicion towards the legitimacy and proportionality of government conduct. Part A did not distinguish the circumstances mentioned above. To avoid overreach, it should be limited appropriately in terms of the scope of its literal meaning and implications. 【42】
       Offenses punishable by Part A should be limited to on-site insults that could substantively hinder the public official from performing his or her duties. This includes actions that are clearly obstructive to public officials' command, communication, and carrying out of duties. Actions stopped immediately after a request from the official do not constitute insults as such. Limiting the application of Part A within the parameters mentioned above is necessary for attaining its purpose and conforms to the ultima ratio principle in criminal law.【43-45】
       In addition, insults directed toward a public official during the discharge of duties may also infringe upon the official's social reputation or dignity in reputation, thus constituting the offense of public insult under Article 309 of the Criminal Code. This is an offense indictable only upon complaint. However, the government should provide more active protection to civil servants on this matter. Competent authorities could review and amend relevant provisions in the Code of Criminal Procedure, stipulating that when such an offense happens, the civil servant's agency or superior officer may file an independent complaint. 【50】
3. In terms of Part 2 of the Holding:
       As mentioned above, speeches punishable under Part B are negative remarks toward the public official's (discharge of) official duty, which entails criticisms of governmental power instead of individuals. When criminal measures are applied to such offenses, their chilling effect is greater than that of civil or administrative measures. Therefore, strict scrutiny should be applied when reviewing whether Part B of the disputed provision violates the freedom of speech under the Constitution.【52】
       In terms of Part B's legislative purpose, its object of legal protection (Rechtsgut) could only include the sanctity of the civil service and the performance of official duty. The former, as mentioned above, has been established as unconstitutional. As for the latter, since the effective protection of people’s rights and the maintenance of law and order are at stake, if the insulting speech is potent enough to cause clear and present danger to the performance of official duties, the purpose of protecting the performance of official duties is constitutional.【53】
       In terms of Part B's means, the insults punishable by it are addressed towards the official duties instead of the individual public official, which should be considered as criticism toward public power even though its wording is vulgar or merely venting. This type of speech should be protected by the freedom of speech under the Constitution. Moreover, regardless of its wording or implications, such speech could hardly create any clear and present danger to the performance of official duties. 【54】
       In conclusion, Part B of the disputed provision contradicts the constitutional protection of freedom of speech. It should cease to be effective from the announcement date of this Judgment.【55】
   
    

Notes:
[1] Translator's note: Italic text adjusted from the official version for gender neutrality.