취재의 자유와 언론의 取材源接近權 논의

Discussion on the Freedom of Newsgathering and the Mass Media s Right of Access - Its Possibility and Limitation -

The government, under the order of President Roh Moo-Hyun, started in late May plans to shut down press clubs run by government agencies and ministries, and consolidate briefing rooms. Government s so-called Media Support Modernization Plan sparked controversies among journalists, scholars, politicians and lawyers. Especially journalists strongly objected to the attempt, maintaining that the government s plan would likely infringe on the freedom of the press protected by the Constitution. The government, however, pushed forward with its plan regardless of the resistance from the media organizations and journalist associations. The lawyers for citizens, a civic group comprised of lawyers, filed on the 10th of July, 2007 a constitutional complaint against the government in the Constitutional Court of Korea. The petitioners included Munhwa Ilbo, a newspaper company, several reporters working for it, and some ordinary citizen readers. The lawyers for citizens, on behalf of the petitioners, alleged in the complaint that the government s plan would infringe on the constitutional rights of the petitioners, including, freedom of reporting, freedom of newsgathering, right to know, freedom of occupation, etc. Therefore, it is necessary to examine whether the mass media s right of access can be recognized and established as an element of freedom of newsgathering under the Korean Constitution, since the government s plan, if executed in original form, will affect the media s right of access to the sources of information most seriously. This paper first has discussed the historical background of the mass media s right of access, from the case of Gannett Co., Inc. v. DePasquale to Richmond Newspapers, Inc. v. Virginia and Press-Enterprise v. Superior Court(I, II). The United States Supreme Court has established two prong test, experience and logic test or history and function test ever since Mr. Justice Brennan formulated them in Richmond Newspapers. The test has been adopted in numerous cases to evaluate whether the media s right of access can be established under the First Amendment of the U. S. Constitution and is infringed by the government s action. Article 21 of the Korean Constitution guarantees the freedom of the speech and press. Most of the scholars agree that this provision also guarantees the freedom of newsgathering as an element of the freedom of mass media. Although several scholars have discussed the media s right of access, it is not clear whether it can be recognized and established under the Korean Constitution. Therefore, this paper has suggested that the media s right of access to the sources of information should be recognized and established under as a part of the freedom of the press under the Korean Constitution. The rationales supporting this argument are that the right of access to the sources of information is essential for the freedom of the press and the media exercises this right as a surrogate of the general public. It is not clear yet whether the Constitutional Court will adopt the right of access argument and two prong test to evaluate the constitutionality of the government s plan. However, it is highly desirable that the media s right of access and the test for it should be discussed among scholars and lawyers. I would like to expect this paper will serve to stimulate discussions over the possibility and limitations of the right of access issues before and after the decision of the Constitutional Court regarding this matter.