Constitutional Review of Anti-North Korea Leaflets after the Filth Balloon

In 2023, the Constitutional Court ruled that the prohibition of anti-North Korea leaflets under Article 24, Paragraph 1, Subparagraph 3 of the Inter-Korean Relations Development Act and the punishment provisions under Article 25 of the same Act were unconstitutional. There is no disagreement in the Constitutional Court’s decision that the act of sending anti-North Korea leaflets is protected by the freedom of expression under the Constitution. However, the majority of the Constitutional Court judged that the prohibition of ‘distributing leaflets, etc.’ was not a regulation of the method of expression, but a regulation of the content of expression. Since it was a content regulation, strict review was applied, and the law subject to this case, which prohibited and punished the distribution of anti-North Korea leaflets, was ruled unconstitutional. Based on the theory of the special relationship between South and North Korea, the Constitutional Court judged that freedom of expression should be guaranteed in North Korea under the Constitution, and that the freedom to express North Korean residents that the North Korean regime does not tolerate is also protected by the Constitution. Through this decision, the Constitutional Court confirmed that freedom of expression is a constitutional norm that we must not forget even in the special relationship between South and North Korea. In the framework of special relationship that aims for peaceful unification, leaflets sent to North Korea can be protected as an act of freedom of expression. However, if the framework of the special relationship between North and South Korea is broken, leaflets sent to North Korea cannot be considered as an object of protection of freedom of expression. As of 2024, inter-Korean relations are increasingly entering a state of hostile confrontation. In the current inter-Korean relationship, anti-North Korea Leaflets, like filth balloons, are clearly dangerous acts that stimulate military tensions between the South and the North. Therefore, anti-North Korea Leaflets and filth balloons must be stopped for the sake of peace on the Korean Peninsula. Looking back at the Constitutional Court’s decision, if leaflets sent to North Korea are to be stopped by law, the purpose must be to ensure national security. Not the entire act of sending leaflets, but the act of sending leaflets north of the Military Demarcation Line without permission from the military authorities should be defined as an illegal act that is prohibited. And it is appropriate to punish those who “endanger military facilities and the lives and bodies of citizens” due to such illegal acts. The fact that anti-North Korea Leaflets are the only means of conveying opinions to North Korean residents is not a matter that needs special consideration in order to protect freedom of expression, but rather a reality that needs to be overcome in order to expand freedom of expression.