미 연방헌법 수정 제1조의 해석과 자기통치의 원리- 민주주의적 언론의 자유이론과 우리 헌법의 해석 -

Freedom of speech, on the other hand, contributes to the realization of personality in the personal domain, but on the other hand it contributes to the realization of democracy in the public domain. The discussion relating to this, of the First Amendment of the United States Constitution, freedom of speech, is the principle of self-government. According to self-goverment theory, the freedom of the speech seems to receive stronger protection than other fundamental rights because of its ability to realize democracy. The representative of self-goverment theory is Meiklejohn, an American educator and philosopher. In order to realize the principle of national sovereignty, he thought that the freedom of the speech should be guaranteed for the people to exercise their right to vote. According to him, freedom of speech in the public domain will be guaranteed without restriction, as provided for in the First Amendment. He regarded the freedom of speech as democracy itself. Self-government theory was adopted by the US Supreme Court. In the case of Sullivan, Justice Brennan ruled that Meiklejohn’s logic would protect the media coverage of public officials. However, it does not mean that self-government theory should be confined to Meiklejohn’s theory. Justice Holmes’s clear and present danger principles based on liberal traditions on the freedom of speech have their roots in self-goverment theory, and the theories of the Absolutists, Judge Hand, Justice Black, and Justice Douglas have the common connection point with self-goverment theory. Free marketplace of ideas theory also have the same roots with self-government theory. It is necessary to redefine the understanding of self-government theory in order to realize the true value of speech and approve affirmed Preferred Position of freedom of speech. There is a need to escape from a narrow understanding of self-government, and it is necessary to look at the speech from the viewpoint of participatory democracy instead of traditional democracy. Such an establishment of viewpoint of self-government theory is not irrelevant to the function of the speech in modern society. It is time for constant efforts to establish true freedom of speech.