미국헌법상 표현의 자유의 지지논변으로서 사상의 시장론

초록

The United States is the nation that best represents modern liberalism and liberal democracy. Freedom of expression is the fundamental right that lies at the core of American liberalism. Stated by the First Amendment, it protects freedom of speech, press and peaceful assembly. However, even in the United States, freedom of expression has not been comprehensively guaranteed immediately after it's incorporated in the constitution. It would be true to say that freedom of expression has rather been disregarded or overlooked for about 120 years since its adoption to the Bill of Rights. Justice Oliver Wendell Holmes Jr., the most prominent and widely cited jurist in history, brought life to this right. In succession of arguments by John Milton and John Stuart Mill which had said promoting freedom of thought leads to discovering truth, Holmes proposed marketplace of ideas theory in his dissent in Abrams v. U. S.. Holmes said the ultimate good desired is better reached by free trade in ideas - that the best test of truth is the power of the thought to get itself accepted in the competition of the market. Thereby Holmes was widely admired as a great dissenter, an advocate of freedom of expression. Holmes's beliefs announced a new departure in constitutional philosophy. His opinions were committed to liberal and progressive view towards constitution, particularly when we concern prevalent conservatism in the Supreme Court and American society in those days and the historical background of World War I. Ever since then, marketplace of ideas theory earned power as a supporter for freedom of expression in the U. S. Constitution. However, as social and legal environment has changed over time, the theory has come to face criticism in many ways. By claiming government detachment from the market itself, it may serve as a defensive measure for government vs market structure. Yet, the deeper concerns over oligopoly and bipolarization, the greater demand for guaranteeing each individual's freedom effectively. Furthermore, to assure the individual freedom effectively, "freedom" should not be limited to negative concept but should reach out to participation and self-decision, thereby the market become both more liberal and democratic. For freedom of expression positioning across multiple layers of liberalism (for individual) and democracy (for state and society), such criticisms may be true to a certain degree. Thus to take them properly as a part of constitutional theory, we should first identify between the two layers what's common and what's not. The marketplace of ideas theory, for its role to secure market freedom through a system of checks and balances between government and market and lay foundations for individuals in the market sharing equal amount of rights in terms of expressing their thoughts, holds great values in current times.

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