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Freedom of Assembly and Prior Restraints in the U.S. Constitution

  • DONG-A LAW REVIEW
  • 2011, (51), pp.27-57
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law

LEE BYEONG-GYU 1

1동아대학교

Accredited

ABSTRACT

This study focuses on the US Supreme Court's precedents related to prior restraints on freedom of assembly of the American Constitution. It takes note of the process in which the concept of prior restraint was formed early in America and potential risks of prior restraints with regard to basic human rights, compared to post restraints. Just as freedom of assembly, guaranteed by the First Amendment, is viewed as part of freedom of expression, prior restraints on freedom of assembly are also treated within the domain of prior restraints on freedom of express. The Near v. Minnesota case, where the Supreme Court ruled prior restrains on freedom of express to be unconstitutional, is a significant precedent in that the case dealt with the constitutionality of prior restraints on constitutional rights. Before discussing prior restrictions on freedom of assembly, this study examines those on obscene expressions and restrictive zoning because the freedom of assembly to appreciate audiovisual materials can rightly be regulated in advance as a result of restriction on obscene expressions, and in some regions imposed by the constitutional restrictive zoning, assemblies can be prohibited beforehand by means of the prior control on the areas. After that, the present study investigates more direct problems regarding prior restraints on freedom of assembly. Under the US Constitution, prior restraints on freedom of assembly and the like are presumed to be grossly unconstitutional since they can suppress the freedom protected by the First Amendment. However, if prior restraints represent well problematic situations in need of the laws and follow proper procedures in consideration of ensuing problems, it is impossible to say that they are unconstitutional and should be completely excluded from the Constitution. Moreover, constitutional issues can be addressed only if noncriminal procedures restricting expressions in advance are guaranteed by details of procedure which prevent risks of the censorship system. According to recent precedents, however, procedural guarantees are required in case of content․neutral permissions among regulations on using public forums. In the United States, prior restrains on freedom of assembly, a permit system through broad discretion, are banned but they are accepted when there are dangers directly on public peace and order. This feature can be found in the prior restraints on freedom of assembly under the Korean Constitution. Though the Korean Constitution prohibits permission or censorship on freedom of assembly while adopting the prior notification system, all prior restraints are not uniformly unconstitutional. In this sense, it is necessary to refer to the US Supreme Court's precedents regarding prior restraints on freedom of assembly.

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