국경간(國境間) 표현의 자유에 관한 비교법적 연구

Abstract

While technological developments are rapidly facilitating the cross-border exchange of ideas and information, the Korean legal system continues to differentiate the treatment of domestic speech and cross-border speech. Various restrictions on grounds of expression are imposed regarding the physical movement of people and objects as well as internet speech that transcend borders. The Korean Constitutional Court has yet to explicitly acknowledge the constitutional status of cross-border expression, and the gap between protection of domestic and cross-border speech remains unaddressed. In contrast, the US Supreme Court ruling Lamont v. Postmaster General(1965) acknowledged the right to receive foreign mail under the First Amendment. Also, Holder v. Humanitarian Law Project(2020) acknowledged that content-based restrictions of speech under the direction of, or in coordination with foreign groups are subject to heightened scrutiny. The German Constitutional Court ruling of the case Leipziger Volkszeitung(1961) acknowledged the right to receive foreign information under Article 5 of the Basic Law, and in the case Ausland-Ausland-Fernmeldeaufklärung(2020), the German Constitutional Court clarified that fundamental rights vis-à-vis the German state authority is not restricted to German territory - the German state authority is bound by fundamental rights even when acting against foreigners in foreign territory. This article analyses the above decisions along with others from the US Supreme Court, the German Constitutional Court and the European Court of Human Rights with the aim of extracting lessons that may be applicable in establishing the constitutional status of cross-border speech under the Korean Constitution. Similarly to the foreign examples, the Korean Constitutional Court may be able to justify the constitutional protection of cross-border speech based on its former justification theories regarding domestic speech, and also considering international human rights standards. This can serve as a starting point for a broader and more substantial perspective of the freedom of speech that will be able to address its increasingly international aspects.