이익의 관점에서 바라본 표현의 자유 -토마스 스캔런(Thomas Scanlon)의 표현의 자유 이론 연구-

This paper analyzes Thomas Scanlon’s theories related to freedom of speech, through which he has established an interest-oriented approach to the value of the First Amendment. According to Scanlon, the value of free speech is comprised of three distinct interest groups: the participants, the audiences, and the bystanders. This framework is particularly unique in terms of the attention to detail given to the interests of listeners(audiences and bystanders), which has, traditionally, not been a free speech object under constitutional protection. These theories, therefore, broadly defend speech through articulate justification; the government cannot restrict individual speech, as the audience and bystanders potentially hold interests in engaging the speakers. Scanlon’s approach is not intended to produce absolute protections of all speeches. The idea is to regulate speech that may obstruct human reasoning, such as subliminal advertising, which originates from his earlier absolutist thinking concerning sheer reverence for autonomy and free speech. From this, Scanlon formulated the Millian Principle, which stands as a convincing justification for the exclusion of government intervention on individual speech. However, discrepancies in this theory, which allowed for production of unjust results, prompted Scanlon to modify his rigorously liberal absolutism on free speech. Through these adjustments, we have theories that, arguably, should no longer be classified as absolutist. In actuality, Scanlon’s theories hold much potential to further harmonize government restriction on individual speech with the liberalist ideal for protective speech, which acquires larger necessity in current Korean society.