디지털 시대 헌법상 표현의 자유 개념 변화를 위한 시론 — 혐오표현 문제를 중심으로 —

As accessibility to information grows faster, individuals can make more reasonable decisions based on extended information over all their daily lives. However, quantatively-developed digital circumstances have brought serious side effects, such as hate speech because the development could not guarantee quality of information. While diversified methods of communication have provided new opportunities for everyone to express ideas and facts, harmful expressions including fake news have been widely spreaded together. Such expressions are dangerous for they may not only do harm such as terrorism, instigation to a country, but also threaten individuals who do not equipped with enough defense power. Especially, These expressions that usually are made by a state or the majority of a society are problematic because the target of their attacks are focused into the minority. This is exactly opposite to the rule of law that aims to protect individual rights. The structure of freedom of speech theory should be reorganized into the way in which the harmful speech can be more regulated. The conceptional boundary of speech may be reconsidered in the digital settings for making decisions about the possible constitutional protection more reasonably. The Civil Right Acts may support this theoretical movement. However, a specific constitutional theory alone will hardly ignite the conceptual change of freedom of speech in a society without enacting the Civil Right Acts like Korea. Therefore, we need to build a new structure of free speech theory in which anti-discrimination is included by definition. A different observation on freedom of speech will help: the concept of freedom of speech is not the individual but the relative. That is, The concept includes the existence of ‘the others’ except the subject and the object.