미국에서의 증오표현행위의 규제에 관한 판례경향

In this paper, I have reviewed the cases of US Federal Supreme Court on whether the restriction on the “Hate Speech” is constitutionally possible. In the case of Chaplinsky, the US Federal Supreme Court divided the “expression” specified in the freedom of speech of the First Amendment of US Constitution into the “protected speech” and “unprotected speech”. It took a position that the expression which does not contribute to the exchange of opinion can be subject to restriction without violating First Amendment to the Constitution. In the case of Beauharnais, the judgment specified the collective defamation as one of the items of defamation which are out of the scope of First Amendment to the Constitution, citing the category theory in which the restriction specified in the case of Chaplinsky is possible. It concluded that the collective defamation can be restricted even when there is no “clear and present danager”. The case of National Socialist Party v. Skokie specifies that there is the need of due process of law when the right which is specified in the First Amendment to the Constitution is to be deprived. Accordingly, it does not mean that the demonstration by Neo-Nazi group is guaranteed by First Amendment to the Constitution. But the Federal Supreme Court's position of not guaranteeing the right of appeal is likely to show that the court recognizes the expression behavior as one which is ensured by First Amendment to the Constitution. In the case of R.A.V. v. City of St. Paul, the Federal Supreme Court sentenced that the ordinance of City of St. Paul is not in compliance with First Amendment to the Constitution with unanimous vote of all of 9 judges (though 4 of 9 judges did not agree on the logic of argument made by the majority). The Federal Supreme Court recognized that the ordinance of the City falls on he “Content Discrimination”, which is prohibited under the Constitution as it does not specify the restriction on the specific communication of interest groups such as party, union or gays through it restricts the “fight words” based on the race, color of skin, faith or religion or sex. The Federal Supreme Court considered the above mentioned law of the state as unconstitutional with 7 to 2 in its judgment on the case of Black and the collective cases of Black with Elliot and O'Mara case. In the court's opinion on the Virginia's cross-burning statute, the Federal Supreme Court argued that the freedom of speech is not an absolute one, and the contents of expression can be restricted in some cases and that some provocative expression can be prohibited under the law if it causes injuries to others or damages the order in a community for example. It also specified that the provocative behavior may not be punishable unless it is likely to cause any imminent illegal behavior but it specified that the expression can be restricted if the speaker is likely to cause the illegal violence and if the expression is deemed as the “true threat” to others. It recognized that the burning of a cross is one example of true threat and that this kind of action cannot be protected under the Constitution. In addition, the Federal Supreme Court admitted that the provision on the burning of the cross in the State of Virginal is the viewpoint neutral. It considered that the Ordinance of the City does not violate the First Amendment to the Constitution as it does not prohibit the special items which are not desirable, unlike the ordinance of the City related to the case of R.A.V. It decided as unconstitutional the prima facie evidence provision which states that if there is the burning of the cross, it can be deemed to be the threat and that it can be the sufficient evidence proving that there was an intention of threat. Based on this trend of judgment of cases, it is likely that Federal Supreme Court does not join the groups which argue that the restriction of Hate Speech is the absolute violation of Constitution though it does not show its future position on the restriction of hatred expression. Instead, it looks like that it recognizes the limited restriction of hatred expressions as it was affected by the critical racial theory. Looking at the cases of R.A.V, Black and other cases, we can assume that the hatred expressions are restricted by the Federal Supreme Court only if they lead to violence.