정부언론의 성립요건에 관한 최근 동향 - Walker v. Texas Div., SCV, Inc. 및 Matal v. Tam 판결을 중심으로 -

Until the end of the 20th century, the US Supreme Court has protected the freedom of expression more strongly through the interpretation of first amendment of the Constitution. Namely, it has developed theories that protects the free expressions of individuals more strongly about government’s regulation. In particular, the 'principle of viewpoint neutrality' is one of such theories, in which the government prohibits discrimination by supporting or opposing the expression of certain individuals, and the Court has always found it unconstitutional until today. In other words, the principle of perspective neutrality has served as a restriction and limitation of the constitutional rights. Therefore, freedom of expression in the United States has a central protection area that can not be infringed. It is beyond the simple 'expression' itself that protection against 'the actual content of expression' can do. In shorts, this theory of the First Amendment of the Constitution means that the government can not infringe the 'viewpoint' in any case. On the other hand, the government has a variety of policy perspectives as well as an private person has his(or her) ideas. However, the problem is that when the government action has some effects on the expression of the individual, the ‘expression of the government’s voice‘ is will be unconstitutional for the violation of the principle of viewpoint neutrality in most cases. Thus, the government has been unable to achieve its policy objectives because it is forbidden to discriminate against the expression of the individual whatever it is. Under this background, the Court recognized the “government speech theory” that Rust v. Sullivan case was ruled in 1991 and that the First Amendment’s doctrine does not apply to the expression of the government in the course of the policy process up to now. I have. In particular, the Pleasant Grove City v. Summum case ruled in 2009 that the permanent sculpture of the municipal park donated by the private person was a government speech, and Walker v. Texas Div., Sons of Confederate Veterans, Inc. case in 2015 also extended the concept of the government speech theory by calling the 'special license plate' of the form that the individual freely designates the design, and the government finally approves it. However, it is necessary to establish the requirement for the government speech because the extension of the theory is highly likely to be abused as a means of avoiding the viewpoint neutrality principle of first amendment. In the case of Matal v. Tam case in 2017, which Patents and Trademark Office rejects the registration of the name of the rock band (The Slants), the name of the band was not the government speech. It seems meaningful to limit the expansion of government speech theory indiscreetly.