시민권으로서 ‘자유’ 원리의 변화: 미국 연방대법원 판례 분석을 통해

The purpose of this study was to examine the change in the meaning of the freedom principle as a civil right through analysis of the precedent by the U.S. Supreme Court. In legal disputes over the freedom principle, representing freedom of speech, the Supreme Court's rulings themselves become the history of the United States and are part of the politics and society of America. Specifically, freedom of speech in American society is actively protected by the First Amendment. It is not fixed by law, and the precedents of the Supreme Court over the First Amendment have constantly changed over the course of history. In other words, it has shown both a sharp confrontation and harmony between the progressive and conservative camps over the application of judging criteria, called the clear and present danger doctrine. Accordingly, this study analyzed the process of changing the historical and social meaning of freedom of speech by selecting and analyzing cases related to the freedom principle protected by the First Amendment. Results of the analysis showed that the clear and present danger doctrine went through a dialectic process between progressive and conservative Supreme Court justices. Specifically, the clear and present danger doctrine was retreated with the bad tendency doctrine, and then changed to a trend of reinforcing freedom of speech with the clear and present imminent danger doctrine. This goes back to the clear and probable danger doctrine during the Cold War when urgency was changed to a possibility. But as the urgency requirement was added, the doctrine has been applied permissively in the direction of expanding freedom of speech. Overall, while the progressive and conservative camps are in conflict and mediation, they are expanding the freedom principle of the First Amendment.