국가의 보조금 지원과 표현의 자유

Abstract

The unconstitutional conditions doctrine is that government may not grant a benefit on the condition that the beneficiary waive a constitutional right, especially freedom of speech. The doctrine has mainly been applied to the case where government may condition subsidies on silencing certain expression. The U.S. Supreme Court established ‘scope of program test’ in AOSI case(2013). Under the test, whereas (1) conditions that define the limits of the governmental subsidies program do not infringe freedom of speech, (2) conditions that seek to leverage subsidies to regulate speech outside the contours of the program do infringe freedom of speech. The test firstly requires to decide that the purpose of governmental subsidies is (1) to convey government’s own message or (2) to encourage a diversity of views from private speakers. In case of (1), government can impose conditions that force to relinquish certain expression contrary to the viewpoint of government, but in case of (2), government cannot impose those conditions. Even in case of (1), it is needed to decide whether the conditions regulate only expression inside the subsidies program or up to expression outside the subsidies program, secondly. This issue depends on whether the recipient of subsidies can still make the very expression regulated by the conditions through alternative channels or not. The Constitutional Court and Supreme Court of Korea have dealt with similar cases, such as ‘blacklisting cultural artists’ cases. While it seems that both courts referred to unconstitutional conditions doctrine, some opinions misunderstood the doctrine and an explicit standard determining constitutional validity on these cases has not been established. It might be helpful to consider introducing a doctrine similar with unconstitutional conditions doctrine.