선거운동에 관한 내용 중립적 규제의 위헌심사강도 세분화 가능성

Abstract

Regulation of speech can be categorized into content-based regulation and content-neutral regulation. This classification is widely accepted by both the Constitutional Court of Korea and the U.S. Supreme Court. However, distinguishing between the two types is not always clear in actual legislation. Therefore, a flexible approach is necessary when conducting constitutional review. In particular, regarding content-neutral regulation - even if a certain regulation is deemed to be content-neutral on its face -, it is necessary to consider the legislative purpose and the secondary effects caused by the legislation in order to determine whether the regulation functions as a form of censorship that prohibits expression itself or its content. Prior to such a discussion, it should be determined whether the regulation focuses on restricting actions rather than the expression itself, which may require a relaxed intensity of constitutional review. Based on the above, the Restriction on Use of Loudspeaker Systems clause in Public Official Election Act can be considered as a form of conduct-regulation rather than speech-regulation. The Prohibition of Installing of Facilities and Prohibition of Unlawful Distribution or Posting of Documents and Pictures in Public Official Election Act require alternative measures to minimize the restriction of political speech. The Restriction on Various Assemblies in Public Official Election Act is considered unconstitutional. In this regard, the recent decisions of the Constitutional Court of Korea are considered justifiable.