Banning the Distribution of Leaflets to North Korea and Freedom of Expression : A Review of the 2023 Constitutional Court Decision

In December 2023, the Constitutional Court of Korea ruled that provisions of the Act on the Development of Inter-Korean Relations, amended by the Moon Jae-in administration in December 2020 to ban the distribution of leaflets to North Korea, were unconstitutional. This article examines the Constitutional Court's ruling on the leaflet ban through the lens of freedom of expression, focusing on the distinction between content-based and content-neutral regulation of expression and the risks associated with content-based regulation. The ban on the distribution of North Korean leaflets is best understood as a content-based regulation of expression. The distinction between content-based and content-neutral regulation can be made by analyzing the text of the law and the underlying legislative purpose. While the wording of the law ostensibly restricts the manner of expression, the purpose of the law is to prevent the dissemination of content critical of the North Korean regime to North Korean audiences, which qualifies it as a content-based regulation. As a general principle, content-based restrictions on expression are subject to strict scrutiny to determine their constitutionality. In the context of North Korean leaflets, concerns arise about the potential provocation of the North Korean regime, which could result in significant harm or danger to the lives and security of the South Korean people. It is therefore necessary to examine the specific nature of regulating speech that poses such risks. In the United States, for example, certain types of speech deemed dangerous - such as “fighting words” or incitement - are exempted from strict scrutiny. However, the fighting words doctrine cannot be applied to determine whether the North Korean leaflets fall outside the protected sphere of free speech. The diverse and unspecified nature of the leaflets precludes a blanket categorization as incitement. As the Constitutional Court rightly observed, the leaflet ban is overbroad in its scope and infringes upon freedom of expression, particularly given the availability of less restrictive alternatives to achieve the legislative objective. Nevertheless, given North Korea's provocative behavior, the regulation of leaflet distribution remains necessary. Future legislative efforts should aim to require individuals or organizations to notify the Ministry of Unification in advance of the distribution of North Korean leaflets. Although the constitutional prohibition on prior restraint prevents the Ministry from selectively banning individual cases of leafleting, it could impose a temporary suspension of all leafleting based on the prevailing level of tension between North and South Korea. Such measures would balance the need to address national security concerns with the imperative to uphold freedom of expression.