상징적 표현행위-도발적 언사를 중심으로-

• 영문명: Symbolic Speech-With an Emphasis on Fighting Words-
• 발행기관: 한국헌법학회
• 저자명: 고문현(Koh Mun-Hyun)
• 간행물 정보: 『헌법학연구』憲法學硏究 第10卷 第2號, 263~299쪽, 전체 37쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2004.06.01

영문 초록

Freedom of speech IS a pipeline to true democracy. Therefore, freedom of speech is highly protected. Freedom of speech is provided in Amendment I of the United States Constitution, the First Amendment In Chaplinsky v. New Hampshire (1942) the Supreme Court upheld the conviction of a Jehovah's Witness who called a policeman 'a God damned racketeer' and 'a damned Fascist.' holding that 'fighting words' -face to face words plainly likely to provoke the average addressee to fight-are not protected by constitutional free speech guarantees. Viewed narrowly, the fighting words doctrine can be seen as a per se rule effectuating the Clear and Present Danger principle, relieving the government of proving actual incitement by taking the words themselves as decisive. Taken broadly, Chaplin sky strips 'four-letter words' of free speech protection The modern tendency of the Court has been to extend partial First Amendment protection to even the 'excluded' areas of speech To the extent that Chaplinsky refuses protection for four-letter words because they offend taste and morality, It has been limited by decisions such as Cohen v. California (1971), Gooding v Wilson (1972), and Rosenfeld v New Jersey (1972) At least since Stromberg v. California (1931). the Court has assumed that 'speech' within the meaning of the First Amendment's guarantee of 'freedom of speech' includes more than merely verbal communications. In Stromberg, the Court declared invalid a California statute that prohibited the public display of 'any flag, badge, banner or device as a sign, symbol or emblem of opposition to organized government' Among other decisions applying the First Amendment to nonverbal conduct, perhaps the most striking was Tinker v Des Moines Independent Community School District The Court upheld the right of high school students to wear black arinbands as a protest agamst Amencan participation in the Vietnam War, calling their conduct 'the type of symbolic act that is within the Free Speech Clause of the First Amendment' But if conduct sometimes constitutes protected speech, sometimes it does not. United States v. O'Brien (1968) affirmed a conviction for draft card burning In Cohen v. Callforma (1971) the Supreme Court held that the emotive form of speech is entitled to FIrst Amendment protection as is its cognitive content. Eniotive expression can be fully as important as intellectual. or cognitive. content in the competition of ideas for acceptance in the market place. After all, the Court has protected symbolic speech and expressive conduct under the First Amendment in many cases and this symbolic principle has become the core content of modern freedom of speech This means that freedom of speech is in full blossom in the United States of America and Americans are self-confident of their democracy

목차

Ⅰ. 서론

Ⅱ. 상징적 표현행위의 요건

Ⅲ. 도발적 언사

Ⅳ. 상징적 표현행위와 관련된 기타 판례

Ⅴ. 결론

참고문헌

Abstract