음란물 규제의 예외성 및 불안정성 = Exceptionality and Instability of Obscenity Regulation

다국어 초록 (Multilingual Abstract)

The current obscenity regulation that potentially criminalizes all explicit expressions of sexual activities is not sustainable under the clear and present danger doctrine of freedom of speech for the very reason that the depicted sexual activities are legal, and therefore that there is no harm that such expression threatens. To compensate this problem of punishing non-harmful speech, the judiciaries of many countries have tried to narrow the scope of the regulation by exempting works that have “any intellectual or artistic value”. The author argues that such attempt is bound to fail because discussions of obscenity of obvious “intellectual value” must include within it the materials being tested for obscenity. Obscenity regulation punishes “showing” of non-harmful human actions. There is no harm to anchor all criminal legal inquiries on. Murder entails a specific harm, i.e., termination of a life, around which all legal questions are anchored by: “Who has actually done the act that terminated the victim`s life?” There is no such thing in obscenity regulation and therefore, one must “see it” to “know it” as Justice Stewart has claimed. Obviously, the judiciary can simply ignore the problem by declaring all such discussions of obscenity non-obscene but will be under much pressure not to, for different people will be stimulated by different parts of the discussion. The ultimate solution is to fit obscenity regulation back into the auspices of clear and present danger doctrine. In order to do that, we must adjust the scope of the regulation to those works that have specific recognized evils, e.g., (1) depictions of rape, bestiality, sex with minors, adultery(if applicable), incest, sex accompanied by violence, kidnapping, and any other harmful actions condemned by positive law; (2) depictions of women, inciting discrimination against them.

참고문헌 (Reference)

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