Case on Registration Revocation of Obscenity Publishers,

[10-1 KCCR 327, 95Hun-Ka16, April 30, 1998]

A. Background of the Case

This case reviewed constitutionality of a statute authorizing revocation of a publisher's registration for publishing obscene or indecent materials, and for the first time drew a boundary of permissible sexual expressions. It also upheld revocation of registration for obscenities and struck down the same for indecencies.

Article 5-2 (ⅴ) of the Registration of Publishing Companies and revoke the publisher's registration when it is proven that he or she has published obscene or indecent materials or cartoons harmful to children, thereby undermining public customs or social ethics.

The Seocho District Office of City of Seoul revoked registration of the petitioner under the name Jongin Enterprise Publishing for publishing and distributing the so-called 'Semi-Girl' photo binder ("nine actress semi-girls nice photographs"). The petitioner sought judicial review of the revocation at the Seoul High Court whereupon he made a motion for constitutional review under Article 21 (1) (freedom of press), and with Article 11 (equality) of the Constitution. The High Court referred the case to the Constitutional Court.

B. Summary of the Decision

The Court, after reviewing the scope of protection under freedom of speech and press and publication in light of the theory of free market of ideas, upheld the portion of the Registration of Publishing Companies and Printing Offices Act Article 5-2 (ⅴ) concerning 'obscene materials' and struck down the portion concerning 'indecent materials.'

Regulation of speech and press to cure and prevent the ills thereof is necessary and reasonable, but is secondary to the primary regulatory mechanism inherent in civil society, that is, competition of ideas. If the ills of malignant speech and press can be cured through competition with conflicting ideas and opinions within civil society, state intervention should be limited to the minimum.

However, if the harm cannot, by nature, be cured even by the self-cleansing mechanism of civil society or its magnitude is too great to await countervailing ideas and expressions, state intervention is permitted as the primary and freedom of speech and press not protected.

'Obscenity' is a naked and unabashed sexual expression which distorts human dignity or humanity; it appeals only to the prurient interest, has overall no literary artistic, scientific or political value, degrades the sound sexual ethics of the society, and causes harms not dissolvable in the mechanism of competition of ideas. Stringently defined, obscenity is not protected under freedom of speech and press.

The definition of obscenity in Article 5-2 (ⅴ) of the Registration of Publishing Companies and Printing Offices Act provides an appropriate standard both for the person subject to the law and the person enforcing it. It is hardly likely to change in meaning due to the individual flavors of the person applying the law, and therefore does not violate the rule of clarity. Revocation of registration may chill publication and supply of even constitutionally protected publications. But, considering the reality of the chain of supply of obscenities, the actual working of the revocation system, and the devices designed to minimize the effects on constitutional materials, the impairment of the basic rights is not severe whereas the public interest and the need for banning and suppressing obscene publications is overwhelming. The provision does not violate the prohibition of excessive restriction.

In the mean time, 'indecency' is a sexual or violent and cruel expression, a swearing, or other expressions of vulgar and base content, not reaching the level of obscenity and remaining within the domain protected by the Constitution. The concept of 'indecency' justifying revocation of registration is so broad and abstract that a judge's supplementary interpretation cannot sharpen its meaning, and therefore does not inform a publisher's decision in adjusting the contents of the material, violating the rule of clarity and the rule against overbreadth. Corrupt sexual expressions or overly violent and cruel expressions do need be regulated away from the minds of juveniles, but such regulation should be limited to only juveniles and only such narrowly defined means as blocking the chain of supply to them. Totally banning indecent materials and revoking registration of the publisher is excessive as a means for juvenile protection, and debases adults' right to know to the level of a juvenile's, violating the rule against excessive restriction.

C. Aftermath of the Case

Through this decision, the registration of a publisher of indecent materials was no longer revocable while that of obscene materials was. The administrative authorities had revoked in the past simply citing obscenity and indecency together but now had to differentiate between the two and had to apply the definition of obscenity formulated by the Constitutional Court. Of course, the judiciary remained the ultimate authority on obscenity of a particular material.

The High Court in the original case (Seoul High Court 95Gu6078) found the 'Semi-Girl' indecent and rehabilitated registration of its publisher.