미국의 트위터 스토킹 사건 판례 연구 －미국법상 표현의 자유를 중심으로－

Abstract

The FBI indicted the defendant for violation of the statute that prohibits any person from causing emotional distress with the intent to cause emotional distress. The court found that the defendant’s stalking through his twitters and blogs is the speech that the First Amendment has consistently protected. However, there are some narrow exceptions to this broad protection of speech. In order to prohibit these types of speech, the government must show that it has compelling interest to prevent the stalking. Here, the court found that there is no compelling interest on the part of the government. The government argued that the statute in question regulates conduct not speech. The court stated that when combined conduct and speech constitutes a course of conduct the intermediate scrutiny applies. The court found that even if there is reasonable ground for the government, the statute does not survive the intermediate scrutiny. Therefore, the speech is protected and the statute to prohibit the speech does not survive the test, and thus the motion to dismiss the indictment by the defendant is granted. This case confirms that protection of expressions on new IT media is not different from that of the traditional means such as bulletin boards or papers when it comes to the freedom of speech. In this case, the defendant’s conduct seems morally wrong. He lied to A.Z. and TPC. He betrayed the trust that A.Z. and TPC has given. It is noted that the defendant’s morality has nothing to do with his freedom of expression. This case is very rare one dealing with the freedom of expression through twitters. This paper aims at introducing what the court has held and its reasoning to the readers to help understanding the case and find implications from it.