상징적 표현과 국기소각행위

• 영문명: Symbolic Speech and Flag Burning
• 발행기관: 한국헌법학회
• 저자명: 최희경(Choi Hee-Kyung)
• 간행물 정보: 『헌법학연구』憲法學硏究 第10卷 第2號, 301~330쪽, 전체 30쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2004.06.01

영문 초록

This article examines the doctrinal approach and the broader implications of the flag desecration decisions of the Supreme Court in the United States with analysis on the Supreme Court's Johnson and Eichman Decisions to deal with flag burning" First, I explore the legal meaning and constitutional protection of the symbolic speech. The First Amendment provides that "Congress shall make no law ...abridging the freedom of speech," But when the First Amendment refers to "speech" It does not do so in a strictly literal sense, That is, it does not refer only to vocal communication. Any conduct that is intended to communicate and is reasonably understood by others as communication should fall within the first amendment's protection of "speech," Next, I consider the soundness of the Supreme Court's decision in Texas v Johnson and United States v, Eichman, In Johnson, the Court held that the conviction of Johnson for burning the American flag In political protest violated his First Amendment right to free speech The Johnson Court began by determinmg that flag burning is symbolic speech. Next the Court asked whether the governmental interest in restricting the symbolic speech at issues was "unrelated to the suppression of free expression, The Court determined that the asserted state interest lay "in preservmg the flag as a symbol on nationhood and national unity," Since the state's mterest related to expression, the Court applied strict scrutiny and asked whether the state's interest was sufficient to Justify the intrusion on constitutionally protected speech" In the public uproar that followed the Court's Johnson decision, a proposal to amend the United States Constitution falled and Congress enacted a federal Flag Protection Act, which the Supreme Court invalidated in the decision United States v Eichman. The Eichman Court determined that the Act was not significantly different from the Texas statute invalidated in Johnson Therefore the Court held that the Act was subject to "the most exacting scrutiny," and the Government's interest could not justify its infringement on First Amendment rights Lastly, I analyze the flag burning cases under first amendment principles in three stages First, is flag burning a free speech? Second, If so, what is the standard for Judging the constitutionality of the state's effort to make it criminal? Third, what is the outcome under that standard? In Conclusion. the fact that Flag burning was constitutionally protected as symbolic speech Implies full protection of right to free expression as well as reaffirmation of the principles of freedom and inclusiveness that the flag best reflects.

목차

Ⅰ. 序說

Ⅱ. 象徵的 表現의 法的 展開와 國旗汚辱行爲

Ⅲ. 象徵的 表現으로서 國旗燒却行爲의 認定

Ⅳ. 國旗燒却行爲에 대한 修正憲法 第1條의 分析

참고문헌

Abstract