修正憲法 第1條와 十字架燒却

• 영문명: First Amendment and Cross Burning
• 발행기관: 한국헌법학회
• 저자명: 최희경(Choi Hee-Kyung)
• 간행물 정보: 『헌법학연구』憲法學硏究 第12卷 第5號, 273~302쪽, 전체 30쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2006.12.01

영문 초록

  Cross burning is historically closely related with white supremacist group KKK in the US, the cross which is a symbol of holy religion is burnt as a means to sending white supremacy messages and racial hatred. Hence, this article examines whether cross burning can be protected under the First Amendment by focusing on the judicial decision on the unconstitutionality of law prohibiting from burning cross by the U.S. Supreme Court.
  Firstly, this article looks at the details and the meaning of two decision, that is R.A.V decision and Black decision, where the unconstitutionality of law prohibiting cross burning was tried. In R.A.V case where St. Paul Ordinance that prohibits from burning cross was tried, prohibiting cross burning carried out based on a specific reason as race is contend-based discriminations and it is ruled as unconstitutional. However, 11 years later, in Black case where unconstitutionality of the Virginia State Law prohibiting cross burning with intent to intimidate became an issue and the Court ruled that cross burning sends hatred message and it can be protected under the First Amendment as a symbolic speech but the Court took the middle position where expression can be restricted if the expression is considered as a true threat.
  Furthermore, to check whether cross burning can be protected under the freedom of speech. this article examines whether cross burning is subject to protection under the freedom of speech constitutionally. Next, this article reviews whether any cross burning would not be regulated so far as such action is related to the First Amendment as a symbolic speech or whether the regulation over cross burning can be allowed under the Constitution.
  In conclusion, by making it not possible to regulate the freedom of speech with the only reason that a government does not prefer a certain idea, it can be an important protection barrier against suppression or oppression on ideas but all ideas can not be absolutely protected regardless of the contents or the methods. Especially, actions like racial expression and sending hatred messages through cross burning at least will eventually be restricted if these intimidating actions became true threat to someone. Since the Court has added "true threat" into the scope of not being protected under the First Amendment, besides any defamation, obscenity, or fighting words, the rules and scope for regulation on cross burning should be clarified in more detail. Otherwise, unconstitutional restraint on political speech might be resulted from ambiguity in the term of "threat".

목차

Ⅰ. 들어가는 말
Ⅱ. 十字架燒却禁止法에 대한 聯邦大法院判例
Ⅲ. 十字架燒却과 表現의 自由
Ⅳ. 結論
참고문헌
[Abstract]

키워드

십자가소각 표현의 자유 상징적 표현 진정한 협박 도발적 언사 Cross Burning Freedom of Expression Symbolic Speech True Threat Fighting Words