美國 憲法上 表現의 自由에 관한 硏究 : 사이버스페이스에서의 표현의 자유를 중심으로

다국어 초록 (Multilingual Abstract)

Freedom of speech serves as a basis for all freedom and a corner stone of democracy. In the U.S., freedom of speech is protected by the First Amendment and the First Amendment enjoys a certain priority or "firstness." This illustrates that protection of free speech in the U.S. depends on the interpretation of the First Amendment. However, it is very hard to define boundaries that are guaranteed by the First Amendment.
The First Amendment says, Congress shall make no law …abridging the freedom of speech, or of the press. However, this protection has not been considered straightforward or absolute. Over the past two centuries, freedom of speech has been subject to different interpretations in accordance with the makeup of the Supreme Court and the types of speech. In particular, the application of free speech has been varied in line with development in communications media. In todays world of digitalization, protection of free speech in cyberspace is emerging as an important issue.
Initially, the protection of free speech was meant speech and the press. However, in this era of information, freedom of information has secured a critical place in our debate. Behind this change lies the effort to promote peoples right to know.
Thomas Emerson, a leading first amendment scholar, points out that freedom of expression is based on four main premises: (1) the assurance of individual self-fulfillment and the realization of all character and potentialities of existence as a human being, (2) the existence of the essential process of advancing knowledge and discovering truth, (3) the provision of participation in decision-making by all members of society, and (4) the achievement of a more adaptable, hence, more stable community capable of maintaining a balance between conflict and consensus.
Approaches to freedom of expression vary from scholars to scholars. Meiklejohn developed a theory of freedom of expression that would give absolute protection to political speech and believed autonomy was the essence of freedom of expression. Emersons theory of speech-action dichotomy points out that absolute protection must be given to freedom of expression. His theory influenced most on the interpretation of the First Amendment.
Based on the content, Tribe classified restrictions on free speech into content-based restrictions and content-neutral restrictions. He considers only the latter to be acceptable. Alstyne explained a variety of restrictions on freedom of speech using graphics. However, since any specific method is not an absolute option, integrated method is needed for more comprehensive understanding.
In the U.S., protection of free speech is a firmly rooted principle and restrictions are an exception to it. It is virtually impossible to enumerate all the details on freedom of speech due to its overbreadth and complexity. It all boils down to how we define the boundaries between protected and unprotected speeches. If the restriction is content-based, then it's almost certainly unconstitutional. If the restriction is content-neutral, it's probably constitutional, even though it does in some way restrict speech. The time, place, and manner rule is an example of content-neutral restriction.
Public forum doctrine has been established as content-neutral restriction imposed on place. Under this doctrine, the place where speech is communicated determines the scope of protection. Speech in public places such as streets and parks are protected. Speech communicated in semi-public forum (e.g. government properties like schools and libraries) is subject to greater proscription than that in public forum. However, freedom of speech is not guaranteed in private places without the consent of the owner. Therefore, any marching, picketing and handbilling around stores against the owners will are not within the First Amendment protection.
Under the speech-action dichotomy, the Supreme Court has ruled that speech is highly protected while action can be regulated. However, distinction is not always clear. Symbolic speech with communicative effect such as wearing a ribbon or a headband is protected under the First Amendment. The scope of symbolic speech is expected to broaden over time.
With the development of the press and mass media, freedom of the press has emerged as one of the most important issues in freedom of expression. Freedom of the press must be guaranteed to promote the publics right to know. In this respect, immunity is granted to reporting on matters of public interest.
Many precedents of the Supreme Court and the majority of Judges have taken the opinion that there are protected speech and unprotected speech. Drawing a line in the two speech is a major challenge to defining the boundaries of free speech.
According to the core/periphery argument, to bring commercial speech within the freedom of speech guarantee does not mean that such speech enjoys the same degree of First Amendment protection as "core" First Amendment expression, e.g., political, religious, literary, artistic, academic and scientific speech. By contrast, defamation, intrusion of privacy and commercial speech enjoy no First Amendment protection.
Defamation is written or oral statements made by one person to another, and made public ("published"), which tend to bring the character or reputation of that person into disrepute, or to expose them to unreasonable personal embarrassment. Defamation is called libel if it is printed and slander if it is oral.
Originally, the right to privacy meant the right to be left alone. However, the vision of being "let alone" no longer suffices to define the concept of privacy in today's digital environment, where every bit of personal information can be transported and distributed around the world in seconds. Individuals should be able to interact in modern society without losing control over their personal information. The modern right to privacy also entails, therefore, the right to control our personal information even after we disclose it to others.
According to William L. Prosser, the four distinct types of privacy invasion are as follows:
1. intrusion upon the plaintiff's seclusion or solitude, or into plaintiff's private affairs ;
2. appropriation, for the defendant's advantage, of the plaintiff's name or likeness ;
3. public disclosure of embarrassing private facts about the plaintiff ;
4. publicity which places the plaintiff in a false light in the public eye.
Griswold v. Connecticut, 381 U.S. 470 (1965) is the genesis of the "right to privacy," being the first time a majority of the Supreme Court had embraced the notion of a "constitutional right. Meanwhile, the noncommercial publication of matters of public interest by the media is privileged only when it has newsworthiness.
Today, obscenity is one of the most controversial issues in free speech. Standards on obscenity differ from country to country, and from time to time. The U.S. Supreme Court has declared that obscenity falls outside the protection of speech prescribed in the First Amendment. In Roth v. U.S., the first case on obscenity, the Court formulated its own definition of "obscenity": "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest."
Miller v. California shows that the standard for judging obscenity needs to be applied to specific cases more flexibly. Chief Justice Warren ruled that obscenity was a material utterly without redeeming social value. The Court adopted the local standard of obscenity. Different standards of obscenity have been applied to different media and cases. This trend is expected to continue in the future.
Commercial speech has always been regulated by the government. It has not been within the boundary of the First Amendment protection. However, recently, the U.S. Supreme Court held that commercial speech was also protected by the First Amendment. But, once again, the scope of protection has been narrowed down by Chief Justice Rehnquist of the Court.
In some ways, cyberspace is an extension of the real world. As communications medium, it also requires protection of free speech. However, it is difficult to apply real world law to cyberspace due to its unique characteristics.
Cyberspace allows users to freely express their opinions, share information with others, form communities, and participate in the politics. But, at the same time, due to its anonymity, it may also spread violent and irresponsible expressions, leading to potential infringement on others right and anti-social behavior. In this regard, a clear line must be drawn to freedom of expression on the Internet.
One of the primary methods of regulation in cyberspace is self-regulation. Governments should come up with measures to stimulate the industry self-regulation and the industry should play their role to do just that. Furthermore, we must also remember that preserving netiquette is an essential part of our online activities.
Above all, technical regulation mainly driven by the self-regulation is required. This may include blocking access to a certain web sites, restrictions on domains, Internet content rating systems, and filtering systems. However, establishing the legal framework for regulation is one of the highest priorities. Due to the cross border nature of the Internet, a law of a single nation or international law cannot be applied to the medium. Therefore, global law regulating the online activities should be introduced.
Problems arising in cyberspace are not confined to Korea. It is a global phenomenon experienced by countries around the world. In this regard, Korea can learn a lesson from the advanced nations including the U.S. In particular, policies and precedents of the U.S., pioneer of the Internet, will be a great help to Koreas effort to address the negative consequences that cyberspace might bring.
No one knows for sure the future direction of cyberspace. However, one thing is clear: as cyberspace will witness a dramatic change, so will the laws regulating online activities. To conclude, resolving the legal issues surrounding cyberspace requires a clear understanding of constitutional protection and restriction under the First Amendment.

목차 (Table of Contents)

• 第1章 序論
• 第1節 硏究目的 = 1
• 第2節 硏究方法 및 範圍 = 3
• 第2章 表現의 自由의 意義와 接近方法
• 第1節 表現의 自由의 槪念과 機能 = 7
• I. 表現의 自由의 槪念 = 7
• II. 表現의 自由의 機能 = 12
• 1. 思想의 自由市場理論 = 13
• 2. Emerson 의 機能理論 = 15
• 3. Redish의 個人의 自己實現理論 = 17
• 第2節 表現의 自由의 發達史 = 18
• I. 英國憲政의 先例 = 19
• II. 植民地 時代의 經驗 = 22
• III. 聯邦憲法 修正 第1條의 採擇 = 25
• IV. 表現의 自由의 近代的 發展 = 27
• 第3節 表現의 自由에 대한 接近方法 = 31
• I. Meiklejohn의 政治的 言論의 絶對的 保護理論 = 31
• II. Emerson의 表現-行動의 2分法 = 35
• III. Tribe의 內容區別接近法 = 40
• IV. Alstyne의 그래픽을 통한 表現의 自由 分析法 = 46
• 第3章 表現의 自由의 具體的 內容
• 第1節 表現의 場所 = 58
• I. 公的 廣場 = 58
• II. 準公的 廣場 = 63
• III. 私的 場所 = 65
• 第2節 象徵的 言論 = 67
• I. 象徵的 言論의 基準 = 67
• II. 象徵的 言論의 類型 = 70
• 1. 越南戰의 反對 = 71
• 2. 피케팅 = 72
• 3. 國旗 冒瀆 = 73
• 4. 裸體춤 = 74
• 第3節 報道의 自由 = 74
• I. 印刷媒體 = 74
• II. 放送媒體 = 75
• III. Cable 放送 = 78
• 第4節 알 權利 = 80
• I. 알 權利의 槪念과 範圍 = 80
• II. 接近權 = 82
• III. 情報公開請求權 = 84
• IV. 알 權利의 限界 = 87
• 第5節 結社의 自由 = 87
• I. 結社의 自由의 槪念과 成立 = 87
• II. 政黨과 勞動組合에의 加入 = 91
• III. 結社의 프라이버시 = 94
• IV. 結社의 自由의 限界 = 96
• 第4章 表現의 自由의 限界
• 第1節 名譽毁損 = 98
• I. 傳統的 名譽毁損 = 99
• II. Times-Sullivan 原則 = 101
• III. Times-Sullivan 사건 以後 = 103
• 第2節 프라이버시의 侵害 = 107
• I. 프라이버시 權利의 形成背景 = 107
• II. 프라이버시 權利의 承認 = 109
• III. 프라이버시의 類型 = 111
• 1. 私的 事項의 公表 = 112
• 2. 誤認을 낳게 하는 公表 = 113
• 3. 私事의 營利的 使用 = 114
• 4. 私事에의 侵入 = 114
• IV. 言論機關의 特權 - 뉴스性 基準 = 115
• 第3節 淫亂 = 117
• I. '淫亂은 淫亂이다'는 基準 = 118
• II. Roth v. United States 事件 : 淫亂性 基準의 確立 = 119
• III. Miller v. California 事件 : 淫亂性 基準의 發展 = 122
• IV. 判斷基準의 變遷과 새 領域 = 125
• 第4節 商業的 言論 = 127
• I. FTC와 商業的 言論 = 128
• II. 商業的 言論 原則의 確立 = 130
• III. 新 商業的 言論의 原則과 그 適用 = 134
• 第5章 表現의 自由의 制限原理
• 第1節 '事前抑制 禁止'의 理論 = 139
• 第2節 '明白하고 現存하는 危險'의 理論 = 144
• 第3節 '危險한 傾向'의 理論 = 150
• 第4節 '優越的 地位'의 理論 = 152
• 第5節 '利益衡量'의 理論 = 156
• 第6節 '絶對的 接近'의 理論 = 160
• 第7節 '限界劃定衡量'의 理論 = 164
• 第6章 사이버스페이스에서의 表現의 自由
• 第1節 사이버스페이스의 槪念 및 特性 = 169
• I. 사이버스페이스의 槪念 = 169
• II. 사이버스페이스의 沿革 = 171
• III. 사이버스페이스의 特性 = 172
• 1. 雙方向性 = 175
• 2. 匿名性 = 175
• 3. 無限 時間?空間性 = 176
• 4. 多機能性 = 177
• 5. 情報過多性 = 178
• 第2節 사이버스페이스에서의 表現의 自由의 一般理論 = 178
• I. 사이버스페이스에서의 表現의 自由의 槪念 및 特性 = 178
• 1. 表現의 自由의 槪念 = 178
• 2. 表現의 自由의 特性 = 180
• II. 사이버스페이스에서의 表現의 自由의 機能 = 181
• 1. 純機能 = 181
• 2. 逆機能 = 182
• III. 사이버스페이스에서의 表現의 自由의 範圍와 制限 = 183
• IV. 사이버스페이스에서 보호받지 못하는 表現의 類型 = 186
• 1. 名譽毁損 = 186
• 2. 프라이버시의 侵害 = 192
• 3. 淫亂 = 197
• V. 사이버스페이스에서의 表現의 自由의 規制方法 = 204
• 1. 自律規制 = 205
• 2. 技術的 規制 = 206
• 3. 法的 規制 = 211
• 第7章 結論
• <參考文獻> = 225
• = 234
• <附錄> 美國 憲法 全文 = 240