한국 言論自由의 헌법적 위상에 대한 진단

초록

This article intends to evaluate a constitutional status of the freedom of speech and press in South Korea by analyzing the major decisions of the Constitutional Court in the area of freedom of expression under the current 1987 Constitutional Regime. According to the evaluation, it seems that the protection level of the freedom of expression of Korea is not that low, even though some international organizations have criticized the Korean government for not protecting the freedom of speech and press fully. The protection level of the freedom of expression has risen amazingly under the 1987 Constitutional Regime in Korea. The new Constitutional Court established by the 1987 Constitution has made a very decisive contribution to the triumph of the right to freedom of speech and expression. The Court has begun to positively accept the values of the freedom of expression and to interpret the Speech and Press Clause, Article 21 of the Korean Constitution, from a liberal perspective. The leading cases include the 1990 decision of limited constitutionality on the National Security Act, the 1996 decision of unconstitutionality on the prior restraint of motion pictures, the 1998 decision of unconstitutionality in part on the Publishing Registration Act, and the 2002 decision of unconstitutionality on improper communications ban on the internet. It can’t be said, however, that the free speech values have been fully realized in some areas of expressions. The areas include the political one such as elections campaign, political funds, and public employees’ political activities, the cultural one such as video games and sexual materials, and the realm of personality rights such as reputation and portrait. It seems that the regression of free speech is attributable to a hazy fear of harms or risks that will happen as well as the political circumstances specific to Korea. From now on, the legislative and judiciary branches need to make an effort to exquisitely evaluate and exactly decide the harms and risks.

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