미국헌법상 사로잡힌 청중의 이론

다국어 초록 (Multilingual Abstract)

One of the First Amendment principles, the captive audience doctrine is that in certain circumstances, when an audience of unwanted or offensive speech is captive, the government is justified in restricting the ability of the speaker to engage that audience. A captive audience is those who cannot reasonably avoid unwanted speech. While the doctrine focused on the conflict between a speaker's right to communicate and a listener's right to privacy as it appeared at first, rercent cases have applied its reasoning to protect interests besides privacy, that is an audience's right to equal protection or right to vote etc..
Although numerous U.S. Supreme Court decisions relied on the captive audience doctrine have not consistently explained on the definition of captivity and the burden of unwilling listener's to avoid unwanted messages, perhaps it is clear conclusions that the doctrine is more to be applied to regulate speech when one is viewed as a captive in the home than outside the home or public places and one is probably to be regarded as captive in the situation that the speech is spoken rather than written.
This note examines U.S. current case law and shows that the doctrine is riddled with some inconsistency and ambiguity. It also suggests that the dichotomy of visual and audible and in the home and outside home should be reconsideded to apply the captive audience doctrine.
In Korea, perhaps the captive audience doctrine is not discussed in the constitutional theory and cases. In the communication situations of freedom of speech-conflicts between a speaker's right to communicate and a listener's right to privacy in the home, workplace, classroom, campus, streetcar etc., however, Korea has about the same factors as U.S. We should be concerned about these constitutional issues in Korea.

참고문헌 (Reference)

1 김배원, "미국에 있어서 정부언론에 관한 연구" 5 (5): 261-307, 1999

2 Robert D. Nauman, "the Captive Audience Doctrine and Floating Buffer Zones: an Analysis of Hill v. Colorado, 30 Cap. U. L. Rev. 769"

3 Mark G. Yudof, "When Government Speaks: Politics, Law, and Government Expression in America" U.C. Press 1983

4 Sheila M. Cahill, "The Public Forum: Minimum Access, Equal Access, and The First Amendment"

5 Richard Delgado, "The Language of the Arms Race: Should the People Limit Government Speech?"

6 Patrick M. Garry, "The First Amendment in a Time of Media Proliferation: Does Freedom of Speech Entail a Private Right to Censor?"

7 Caroline Mala Corbin, "The First Amendment Right Against Compelled Listening"

8 Daniel A. Farber, "The First Amendment" The Foundation Press, Inc 1998

9 Patrick J. Flynn, "Street Preachers Versus Merchants: Will The First Amendment Be Held Captive in the Balance?"

10 Marcy Strauss, "Sexist Speech in the Workplace"

11 Marcy Strauss, "Redifining the Captive Audience Doctrine"

12 Mari J. Matsuda, "Public Response to Racist Speech: Considering the Victim's Story"

13 Caroline Mala Corbin, "Mixed Speech: When Speech is Both Private and Governmental"

14 Kathryn D. Piele, "Kathryn D. Piele, Sabelko v. City of Phoenix: Ninth Circuit Refuses to Burst "Bubble" Protecting Women Entering Health Care Facilities, 75 Or. L. Rev. 1297"

15 Charles R. Lawrence Ⅲ, "If He Hollers Let Him Go: Regulating Racist Speech on Campus"

16 Daniel Koontz, "Hostile Public Accommodations Laws and the First Amendment"

17 Eugene Volokh, "Freedom of Speech and Workplace Harassment"

18 J. M. Balkin, "Free Speech and Hostile Environments"

19 Daniel A. Farber, "Content Regulation and the First Amendment: A Revisionist View"

20 Erwin Chemerinsky, "Constitutional Law" Aspen publishers 2006

21 Craig R. Ducat, "Constitutional Interpretation"

22 William D. Araiza, "Captive Audiences, Children and the Internet"

23 Edward L. Carter, "Broadcast Profanity and the Right to Be Let Alone: Can the FCC Regulate Non-Indecent Fleeting Expletives Under a Privacy Model?"

24 Laurence H. Tribe, "American Constitutional Law" The Fountain Press, Inc 1988