헌법적 분석: <채털리 부인의 연인>

Abstract

D.H. Lawrence’s “Lady Chatterley’s Lover” is a well-known classic that has caused many governments of the world to ban its propagation since its publication in 1928. In the U.S., the book was designated as an obscene material for several decades before a New York court released the ban in 1959. Today where free internet and digital literature are abound, punishing a piece of writing with criminal law because of its obscene nature, has taken a different meaning. This essay observed how the law and sentencing trend have developed over the topic of obscenity in the United States, and briefly compared them to the Korean situation. The American courts have used Roth, and then Miller tests to determine obscenity. They relied upon the “community standards” to see if the people would find a material to be obscene. This allowed flexibility to the law, permitting the standard of obscenity to fluctuate by time and geographical region. For example, what a Manhattan metropolitan group would perceive in 2012 may be totally different from what Kansas farmers would think back in 1950. In Korea, the Constitutional Court has taken an advanced approach to the matter by adopting the Miller test and adding more specific terms towards protecting constitutional freedom of speech. Statistics show that actual guilty conviction rate has been decreasing in both countries.