The Freedom of Speech and the Rights of Individual Communication With Comparative Method
In the middle of 1980s, the term during which people participated in a democratizing movement against the army government, Cardinal Soohwan Kim, the leader of Catholic Church in Korea, appeared on TV. When CBS, one of the companies of Korean Broadcasting System, interviewed him, Kim emphasized that the purpose of democratization is to ensure the freedom of speech. In that era, when people thought that democratization was achieving a direct presidential election system, the claim of his utterance was a significant impact to the people. Nowadays, Korea has been democratic country for 20 years, and the direct presidential election system is functioning, but there are also scattered anti-democratic elements, and his point of advocating freedom of speech was obviously right. In the result, the Constitution of Korea has ensured the rights of freedom of speech. The 21st Article of the Constitution of Korea says that people have the freedom of speech and publication. It specifies the freedom of expression and the right to know. In terms of public information, it can be interpreted as the right of claim, which prescribes that people can ask for the revelation of specific information as long as it doesn’t threaten the national security or social welfare. Whenever we see news about the scandals of politicians, we have blamed them for their illegal connections with entrepreneurs. If the politicians had ways to justify their illegal concealment of some information for any reason, say, for protecting their privacy, it would be like we were giving them rights to continue with their illegal acts. For this reason, we should not allow any exception concerning anything illegal. An examination of freedom of speech, reveals the value of the freedom of speech, you have to make a conception about the rights of individual communication. Freedom of speech includes the right to express, the right to know, right not to express, and right not to know. Because of these four rights, the freedom of speech exists. In other words, the freedom of speech is the instrumental conception for ensuring the rights of individual communication. Therefore, if the rights of individual communication lost the guarantee which is ensured by the press, a Constitutional basis of the freedom of speech becomes hazy. In this view, Cardinal Kim speaking, the conception of the freedom of speech exhibits more persuasive power when it is interpeted as the rights or freedom of individual communication. Among the rights of individual communication, there are not only some rights which need the help of press, but the others do not. The rights not to know and express are ‘the passive rights’ that can come from the will of a person. On the other hand, the rights to express and know can not be easily achieved by the will of a person. As a result, the power and effect of expression is ineffect without the press, such as a mass media if one has a message to express. Besides, it is difficult to find information without the press. As a result, nowadays, media naturally gets a ‘privilege.’ Almost all journalists profess neutralization or objective stances as a positive and virtuous position to compensate for the privilege of accessing new information. Nevertheless, the rights of individual communication have come to nothing by the influence of the stronger press. Thus, the relationship between the rights of individual communication and the freedom of speech becomes a conflicting relationship, rather than a supplementary connection. As a single idea, the freedom of speech is one of the freedoms which an individual mandates his/her rights to the press for enjoying the rights of individual communication more effectively. If the press does not value the importance of the rights of individual communication, it would lose its meaning. Nowadays, the press is faced with the criticism that the press is for itself and their profit driven and not for the rights of individual communication. The right to express and the right to know are the positive rights; however, the right to express is a priority over the right to know. It is not just because of a point that the right to express is an ‘active right,’ but the right to know is a ‘passive right.’ The right to know is necessary for people and also the press. For example, the press can expand their influence by exposing the illegality and corruption of the government in the name of ‘the right to know.’ On the other hand, the right to express is uncomfortable to the press because a journalist cannot reflect all of the claims of the people and many interesting groups, also, the press often prefers to advocate for some specific side and position. Nowadays, the demand of the right to refutation and the right to approach is increasin. Besides, the right to know can be satisfied by one ‘appropriate’ press, but not for the right to express. Only multiple presses can satisfy the right to express. When the conception of freedom of speech which was started by J. Milton and perfected by J. S. Mill selected ‘the free market of ideology and information’ as a base of that conception, it assumes ‘plural presses.’ Therefore, the free market of the pressed was basically focused on the right to express. In those views, the Constitution of the United States has been estimated that it has more progressive conception than the Declaration of France about civil and human rights (Declaration des droits de I’homme et du citoyen). The French article of civil and human rights just expresses one of the most important conceptions, which is more general compared with the 1st Amendment which was expressed with specific word as saying “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” In addition, in the Constitution of the United States, Amendments from the 1st to 11th is concerned with the Declaration of Independence and the 1st Amendment, including the freedom of speech and press. It was obviously focused on the rights of individual communication. The Constitution of Japanese also has the 21st Article that ensures the freedom of assembly, association, press, publication, and all of the freedom of express. In addition, Prohibition of censorship, and infringement of secret communication are also ensured. In other word, the right of individual communication is figured out as the freedom of speech. The point that Japanese Constitution estimates the press and the publication are same level media, and claim to ensure the freedom of press and publication seems to be come from interpreting the Amendment of U.S. Constitution directly although the publication is one of the branches of the press. However, in the 20th article of the Constitution of Korea, there are conditions that include the limiting of the power of press for public morality or social ethics. Compared with the 1st Amendment of the Constitution of the United State, the Constitution of Korea seems to have more limited rights to the people. It’s because the Constitution of Korea figured out between the rights of individual communication and the freedom of speech as the same value such as the Japanese one. And also advocating the 20th article is based on the rights of individual communication, the basic meaning of the freedom of speech and the rights of individual communication would not be damaged. Therefore, almost all of the countries, protecting the freedom of the express system, give a priority to the rights of individual communication than the freedom of speech. In this view, the article that the freedom of expression or communication has to be selected as a higher conception and the freedom of speech should be subordinated as a lower conception in the Constitution of Korean.
엄태현(경영·17)
