미국헌법상 표현의 자유 제한이론에 관한 일고찰- 매시즈 판결에 나타난 러니드 핸드 판사의 선동기준을 중심으로- = A Study on Restriction of Free Speech Theory in American Constitution -Based on Judge Learned Hand`s incitement test shown in Masses case-

다국어 초록 (Multilingual Abstract)

The incitement test is a test established in Masses Publishing Co., v. Patten by Learned Hand who was a New York Southern District Court judge for the restriction of political speech. In this case, Hand tried to create an absolute and objective test focused on language itself. This case was discarded right away in the court of appeal, so it have had no meaning as a precedent. But the spirit of the case was embodied in the form of clear and present danger rule two years later after Masses Case by Supreme Court Justice Oliver Wendell Holmes in Schenck v. United States. Holmes’ test established itself as the dominant rule through Abrams, Dennis, Brandenburg cases and it became the history of Freedom of Speech in the United States. Hand welcomed Holmes’ protective attitude on speech but did not yield the position that the incitement test is better theory in comparison with clear and present danger test. Hand regarded the test of Holmes as a subjective test in that it depends on actual facts and their relations within a case. The ideological basis of Masses Decision is the absolute protection of the speech, the self-government theory which goes beyond the attribute of freedom of speech as a basic human right and attempts to relate to the sovereignty theory of democracy, and the judicial restraint or the judicial passivism originated from skepticism. Both the incitement test and the clear and present danger test are rules to protect speech absolutely. But the former is different from the latter in the sense that the former makes issues only from the challenged language, whereas the latter makes issues only out of the proximity and degree of harm. As a result, the incitement test precludes the subjectivity of main agent of judgement, whereas the clear and present danger test may be affected by the contemporary tendency and circumstances. The incitement test may have more narrow unprotectable category of the language in comparison with the clear and present danger test, since the incitement test only makes issues out of the language itself. But it is also pointed out that the incitement test has flaws such as that harmless incitement could be punished, or the indirect language which could obviously cause harmful results could not be punished. Our Constitutional structure is not the same as that of the United States. Even so, it is necessary to adopt their evolved theory for the protection of the speech for the development of our Constitution. At this moment, the Masses test of judge Hand can be a great stimulant to understand the theory of the protection of the speech in the United States. In accepting foreign theory of law, we should be always open in order to get the best results.