표현의 자유의 법리구성과 인권 = Toward A More Consistent Freedom of Expression Law, under The Concept of Human Rights

다국어 초록 (Multilingual Abstract)

This article analyzes the function of the balancing test as a mechanism as adopted by the Constitutional Court in its review over the constitutionality of the legislation that regulates the freedom of expression, in an effort to contribute to the construction of a more consistent theory of freedom of expression law. Based upon the recognition of the values of free expression from the perspectives of pluralism, democratic process and equality, this article analyzes the function of the constitutionality review as currently conducted by the Constitutional Court from the above perspectives and then discusses some of the costs that may accompany the balancing test in terms of the constitutional guarantee of freedom of expression. This article then offers some suggestions with respect to the use of the balancing test in the constitutional guarantee of the freedom of expression for a more consistent freedom of expression law. The right to freedom of expression is justified first of all as the right of an individual purely in his or her capacity as an individual. It derives from the widely accepted premise that every person, in the development of his or her own personality, has the right to form and express his or her own beliefs and opinions. Hence, suppression of belief, opinion and expression thereof is a negation of essential human nature. Also, the right to freedom of expression derives from basic notion of the role of the individual in his or her capacity as a member of society. Humans are social animals, and are subject to the necessary controls of society and particularly of the state. The right of a person to express his or her beliefs and opinions in this role follows from two fundamental principles. One is that society and the state are not ends in themselves, and they exist to serve the individual; the second is the principle of equality, formulated as the proposition that every individual is entitled to equal opportunity to share in common decisions which affect him or her. A crucial implication is that it is not a general measure of the individual`s right to freedom of expression that any particular exercise of the right may be thought to promote or hinder other goals of the society. Further, the argument from democratic theory for a free speech principle rests on the assumption of popular sovereignty. Freedom of expression allows informed discussions and decisionmaking to happen. The constitutionality review as conducted by the Constitutional Court functions as a mechanism under which the Constitutional Court may overrule a law that was enacted by the democratically elected National Assmbly as unconstitutional, in a way that can normally be done only by the complex legislative process. In a representative democracy, value determinations are to be made by the elected representatives, and the structure of the Constitution indicates that the selection and enforcement of certain subjective values as the orthodox values in our society should not be dong at least by the Constitutional Court. Thus, the constitutionality review by the Constitutional Court over the laws should be understood as a mechanism to protect the rights of individuals and minority groups against the actions of the majority. In the area of freedom of expression, the Constitutional Court has predominantly adopted the balancing test in its constitutionality review. Balancing has certain advantages as a mechanism in constructing a protective freedom of expression law. However, balancing of conflicting interests should be conducted with ample caution for the following grounds, which are not exhaustive. First, although the determination of whether certain expression is prohibitable should be fact-intensive from the balancing point of view, such determination depends upon diverse measurements of harms and benefits which might sometimes be hardly distinguishable from the subjective value judgment on the part of the Constitutional Court. Next, censoring minority political criticism might be relatively easily justified under a balancing test in circumstances of substantial political turbulence. The only way for a balancer to avoid this conclusion is by assigning infinite or near infinite positive value to political dissent or criticism, in which case no actual balancing would be engaged. Furthermore, balancing might make every application of every anti-discrimination statute into a serious problem with the freedom of expression. Anti-discrimination laws directly prevent people from engaging in an effective means of communicating messages of group inferiority and superiority. This disparate speech impact can be resolved in balancing as more compelling or stronger public interests may justify the burdens on the free expression. However, balancing faces as-applied challenges and may have to recognize a constitutional right to discriminate when parties can show that discrimination laws have a particularly severe effect on their speech interests and that an exception could be permitted without undue cost. These problems may be solved by looking more directly at the legislative purpose by applying the normal process of judicial statutory interpretation.