Abstract

WON, Yoomin. How Dare You! A Comparative Analysis of Constitutional Court Decisions Regarding Insult Laws in Mexico and South Korea. Mex. law rev [online]. 2020, vol.13, n.1, pp.101-141.  Epub Nov 01, 2021. ISSN 2448-5306.  https://doi.org/10.22201/iij.24485306e.2020.1.14811.

Expressions that criticize the head of state, governmental institutions, or public officials are frequently sanctioned by criminal punishment for their use of derogatory and disrespectful language, referred to in the law as “insults”. This article analyzes four judicial review decisions from the Supreme Court of Mexico and the Constitutional Court of Korea regarding insult laws from the perspective of both international human rights law and constitutional law. I argue that criminally punishing insulting expressions directed against public officials, symbols, or entities, violates the principle of freedom of expression. First, the “dignity of the nation” is not a legitimate interest warranting the restriction of insulting expressions directed at national flags or the Republic. Second, public officials should be required to tolerate a greater degree of insult than private individuals. Protection of a public function, or the honor of a public official, does not justify criminal punishment of insulting expressions. Third, the term “insult” itself is too vague, thus, its use breaches the principle of legality clarity. It also substantively restricts freedom of expression by prohibiting a wide range of utterances and activities. Based on this analysis, I argue that criminal punishment for expressions directed against national flags, public officials, and the nation, should be removed from the criminal codes. Neither the courts nor governmental authorities should criminally punish insulting expressions directed against public officials. Eliminating insult laws would not harm, but rather strengthen, democratic society in both Mexico and South Korea.

Keywords : Insult law; Supreme Court of Mexico; Constitutional Court of Korea; international human rights law.

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