정치적 양극화 시대의 표현의 자유 -참여민주주의를 위한 기능적 가치 회복을 위하여

We are living in an era of political polarization. We can easily witness malicious behaviors based on hatred and destructive words attacking the opponents in our political lives. The more polarized we are, the more extreme our political speech become to get noticed, exacerbating the situation. Harms made from political polarization will compromise democracy in our society, the costs of which will be shifted to the people. This is an apt moment to ask a question: should expressions based on polarization be solidly protected under constitutional freedom of speech? Even though the Constitution guarantees freedom of speech as an individual’s fundamental rights, not all political speech is granted constitutional protection. Courts, in making decisions on the constitutional legitimacy of expressions, need to take into account the underlying value that protection of freedom of speech seeks, which is democracy. The forefathers of the First Amendment jurisprudence in the U.S., such as Judge Learned Hand, Justice Oliver Wendel Holmes, and Justice Louis Brandeis, who laid the groundwork for granting a strong protection for free speech, did not separate democratic value from freedom of speech. They made bold decisions with respect to the protection of free speech even though such decisions defied the opinion of the general public, as long as said speech was for the betterment of democracy. These judges believed that protection of the freedom of speech of the minority would eventually lay a cornerstone for majoritarian democracy. What would they say if they confront a politically polarized speech that deteriorates current Korean democracy by hindering discussions? Would they stand to protect such speech as well? The answer would be no because, according to their understanding, freedom of speech is not confined to the private domain.