象徵的 表現의 規制에 대한 審査基準

The First Amendment of the United States Constitution stipulates freedom of expression which also includes symbolic speech in addition to oral or written expression. However, all the activities for communication do not fall under expression protected by the Constitution and therefore, it is necessary to review which activity may be protected by the Constitution as a symbolic speech. In addition to the meaning of the major symbolic speech as a means of expression, this thesis intends to study proper level of their assurance focusing on the standard of judicial review by the Supreme Court of the United States which regulates them. First, a study will be made whether or not such communicational activities correspond to symbolic speeches being protected under the Constitution as Flag Burning being performed as an intention of a protest, Cross Burning representing hatred or ethnocentrism, and Nude Dancing to communicate erotic message. Second, all the governmental regulations are not prohibited from the fact that a certain communicational activity only falls under a symbolic speech. Even though a certain activity falls under a symbolic speech, a review should be made whether or not the government has a valid authority to regulate it. At the case of United States v. O'Brien, the Supreme Court suggested standard to evaluate protection of a symbolic speech under the Constitution. A specific study will be made on the standard of judicial review of said case which was suggested as a standard for symbolic speech. Third, with the standard raised at the case of O'Brien as the central issue, a review will be made about constitutionality of regulation on the respective symbolic speech of Flag Burning, Nude Dancing and Cross Burning. Along with a judgment on the specific standard of judicial review and its unconstitutionality, a study will be also made whether the O'Brien test is adequate for that of symbolic speech.