By Sean Hayes (Korea Times 03/20/09)
The Constitutional Court heard oral arguments, last week, in a landmark case concerning the right to assembly. The case will have a lasting impact on the government's ability to handle serious difficulties ― violence, disturbance of the peace and the destruction of property by an oft-violent liberal radical minority.
The case concerns a Korean law prohibiting protests at night. Some protesters during last summer's rallies against the importation of U.S. beef and other demonstrations were prosecuted under the law.
The law allows violators to receive a sentence of up to one year in jail or a 1-million-won fine. The facial purpose of the law is to prevent protests from causing injuries and damage to property. As most of us know, many peaceful protests in Korea have turned violent at night.
In the not so distant past, protests over the importation of U.S. beef led to, amongst other things, numerous injuries to police officers, the destruction of public property, Seoul-wide traffic congestion and lost revenues for businesses.
Based on the request of a liberal political activist, the Seoul Central District Court referred a case concerning a prosecution, under the law, to the Constitutional Court for adjudication. The district court, in its petition to the Constitutional Court, stated that: ``The Constitution basically guarantees outdoor protests without time restrictions.
Therefore, the law banning nighttime rallies should have been applied to cases that can apparently destabilize society. But it is now being too generally applied.'' The Korean Constitution declares in Article 21 (1) that: ``All citizens shall enjoy freedom of speech and the press, and freedom of assembly and association.'' Article 21 (2) follows by noting that: ``Licensing or censorship of speech and the press and licensing of assembly and association shall not be recognized.''
The language of the Constitution seems to absolutely guarantee that ``licensing of assembly and association'' is banned. However, as with the First Amendment to the U.S. Constitution, absolute language doesn't necessarily guarantee that courts would not impose limits on rights and freedoms.
For example, in the United States, ``reasonable time, place, and manner'' regulations on speech, assembly, and association are upheld by the courts.
For a law to be considered a reasonable time, place and manner, regulation of speech and assembly, first the law must be ``content-neutral.'' A content-neutral law is one that doesn't regulate a specific message. The night protest ban, in the United States, would be considered content-neutral. It prohibits facially and in practice all protests at night.
Secondly, the law must serve an ``important government interest.'' In this case, the government would contend and would likely prevail, in the United States, with the contention that the important government interest is maintaining peace and security. Laws that prohibited loud noise at night, focused residential picketing, protesting with close proximity to abortion clinics, and completely blocking roads or sidewalks were upheld.
Thirdly, the law must be ``narrowly tailored'' to serve the important government interest. This may pose a difficulty for the government in the United States. The law may be successfully labeled overbroad, since many night protests are peaceful and it may be possible to determine which protests will be violent. Thus, it may be successfully contended that only those protests that may damage the peace and security that will be held at night may be prohibited, thus an absolute ban on night protests is an overbroad burden on the freedom of assembly and hence not narrowly tailored.
The government, however, may successfully argue the reality that it is necessary to absolutely ban night protests because of the scale of the protests at night, the high likelihood of violence and the ready availability of numerous viable alternative channels.
Lastly, there must be viable alternative channels of communication. Daytime protests, weekend protests and the numerous other forms of protest in the United States would be likely held to provide ample alternative channels for communication.
This law in Korea hopefully is analyzed through a similar-type test and not the overused and under-analyzed Article 37 (2). The article states that: ``The freedoms and rights of citizens may be restricted by act only when necessary for national security, the maintenance of law and order, or for public welfare. Even when such restriction is imposed, no essential aspect of the freedom or right shall be violated.''
The article is too often used as a tool to balance away rights and freedoms with no more than a cursory explanation for the reason, with little basis in the application of logically applied and developed legal tests and principles based on the text of the Korean Constitution.