표현의 자유 법리와 헌법재판소의 위헌법률심사기준

Abstract

This article aims to explain the conceptual relationship between the purview of constitutional protection of a fundamental right and the level of scrutiny as applied in the constitutionality review over the relevant statute in the freedom of expression law, by way of analyzing the constitutional conceptual relevance among the presumption of constitutionality of statute, balancing in constitutionality review, and the level of scrutiny for constitutionality review over statute. As such, this article is a part of effort to fine-tune the constitutionality review standard as adopted and applied by the Constitutional Court, thereby adding constructive yet not rigid precision and structure to the freedom of expression law. In this vein, an analysis on the constitutional protection of freedom of expression in a constitutional representative democracy precedes, which is followed by an assessment of the system of review over the constitutionality of the statute by way of constitutional adjudication conducted by the independent constitutional institution of the Constitutional Court, along with the notion of the level or strictness of scrutiny in such constitutionality review. Then this article moves on to analyze the prohibition of prior restraints, the void-for-vagueness doctrine, and the purpose-means relationship test as the application by the Constitutional Court of Article 37, Section 2, of the Constitution, in the freedom of expression law. Relevant decisions of the Constitutional Court are proffered in analyzing the balancing as conducted by the Constitutional Court in the constitutionality review. This leads to the discussion of the theoretical possibility and the constitutional ramification of recognizing and applying different levels of scrutiny, particularly a heightened scrutiny, in constitutionality review over the statute in the area of freedom of expression under the purpose-means relationship test derived from Article37, Section 2, of the Constitution. A persuasive inference from the decisions of the Constitutional Court is that the Constitutional Court perceives the possibility of differentiating the levels of scrutiny in the constitutionality review for the purpose of broader constitutional guarantee of a fundamental right by requiring further thus practically heightening the review standard depending on the type of fundamental right at issue or the pattern of restriction of such right in applying the purpose-means relationship test as a whole and particularly in determining under the requirement of least restrictive alternative. This may lead to a further inference that the Constitutional Court, although at a germinal stage, recognizes and intends to incorporate the notion of narrow or narrower tailoring in restricting freedom of expression or of the preferred position of the freedom of expression in balancing thus it practically applies a heightened level of scrutiny when the statutory restriction relates to the fundamental right of freedom of expression. At the same time, the decisions of the Constitutional Court indicate that the Constitutional Court is to maintain flexibility in balancing in constitutionality review and is not to rigidly apply a heightened or practically more exacting scrutiny, if any, in the area of freedom of expression, so that the constitutionality review may focus on the facts of the case.