Constitutional Review on Unconstitutional Law
The Article 8 of the Gwangju Uprising Special Act
Don Kim
Penn Foster High School
“First they came for the Socialists, and I did not speak out,
Because I was not a Socialist.
Then they came for the Trade Unionists, and I did not speak out,
Because I was not a Trade Unionist.
Then they came for the Jews, and I did not speak out,
Because I was not a Jew.
Then they came for me,
and there was no one left to speak for me.”
—Martin Niemöller
The Gwangju Uprising
The famous quote of remorse is from the prominent German pastor, Martin Niemöller, who genuinely regretted staying silent for victims of Nazi Hittler; and it seemed to be that caution for staying silent, a message of urging solidarity against injustice resonated in Gwangju, where the tyranny Government had brutally, and harshly suppressed their citizens.
On May 18th of 1980, led and begun by the students of Chunnam University, the citizens of Gwangju went on the street, in order to take back their freedom and democracy from the oppressive government; the uprising was held in response to the coup d’etat of May 17th, which implemented martial law and declared ‘Chun’ as a military dictator. However, Chun was not a man with enough mercy to turn a blind eye to either peaceful protest, or deadly riots.
Soon after the protest was held, they, with dreams of democracy and republicanism settled on their motherland, were brutally suppressed by the national army force—fired upon, killed, raped, beaten and tortured by the national military. But, such brutality wasn’t even enough to stop the movement toward democracy. They were willing to sacrifice themselves at the very beginning of the protest for the sake of their natural rights given by God, not by the government, and also for the sake of republicanism, and freedom of speech on the land; and still, we are living under the umbrella of their sacred spirit.
However, lurking beneath the glorious facade of the Uprising lies the shadow of riotous moments. Some protesters gathered together, and took up arms and formed militias; they then raided local police stations and armories. They then became a faction of danger—potentially paralyzing the entire nation—before the army re-entered the city and suppressed them.
Moreover, some innocent people got killed by the craziness of protest. For example, a recent report on the process of the May 18 Democratization Movement, by Chunnam Provincial Police Agency (2017) indicates that four employees from Chonnam Provincial Police Office got killed, hit by the bus which madness protesters stole and drove.
There’s no room for doubt that the Uprising itself was an inevitable response for Democratic development for the nation, and we are obviously benefiting from that movement; however, at the same time, the protest had some hazardous potentials which could have been paralyze the entire nation, especially at the phase of armistice with North Korea. The Gwangju Uprising not only provided glorious values related to freedom, liberty and republicanism in modern South Korean history, but obvious limitations and failures existed as most history of revolution commonly have.
Democrats legislature on disseminating false information regarding Gwangju Uprising.
As a consequence of the great victory of the Democrat in the 2020 midterm election in South Korea, they urged enacting some sort of bills prohibiting dissemination of false information regarding several historical facts—mostly consisting only in their own political favor. Reciting the case of the German Criminal Code, Section 130 (Volksverhetzung or “incitement to hatred”) as the precedent, they began to propose the bills as if they could arbitrarily exploit their power like no one could resist their tyranny legislating with the support of immense amounts of seats in Congress; Democrats had about two third of the seats in the Congress. However, only for the case of the Gwangju Uprising had been passed among these bills by the Congress.
There already existed a law as a “Special Act”—a form of law which especially treats criminals with way heavier penalties than that of other forms of the law—regarding the Gwangju Uprising since December 19th, 1995. However, no articles in that special act regarded the issue of abridging free speech and press until this bill had been proposed. Surely expected from the immense number of democrats’ seats, the bill successfully went through ratification; and finally, on January 5th of 2021, the bill became Article 8 of the Gwangju Uprising Special Act.
The following is Article 8 of the Gwangju Special Act.
Section 1: Any person who disseminates false information about the Gwangju Uprising by any of the following methods shall be subject to imprisonment for up to five years or a fine not exceeding 50 million won (about $30,000):
- Use of newspapers, magazines, broadcasts, other publications, or the information and communications networks defined in Article 2, Paragraph 1, Item 1 of the “Act on Promotion of Information and Communications Network Utilization and Information Protection.”
- Exhibition, posting, or screening of displays or performances.
- Statements made in public forums such as discussions, meetings, press conferences, assemblies, street speeches, or other similar gatherings.
Section 2: Acts described in Section 1 shall not be subject to punishment if they are conducted for purposes of art, academic research, theories, reporting on current events, the study of historical developments, or any similar purposes.
Problems in Article 8
There’s only one comment that I can leave to this Article after the constitutional review: UNCONSTITUTIONAL; to get straight to the point, all problems come from the issue of abridging freedom of speech and press—without any justifiable reasons. I’m not supporting the protection of unbridled freedom of speech or press. Rather, I’m with the concept of Constitutionalism; sometimes freedom of speech and press can be restricted partially and for sure carefully if there’s justifiable reason.
The right to speech and press freely can be restricted partially, only when interest outweighs the cost of restricting. For example, fighting words of delivering clear and present danger could be banned for the sake of the government’s interest in safety; the supreme court case in the U.S. of Schenck v. U.S. (1919) exemplifies this concept exactly.
During World War I, socialist Charles Schenck distributed leaflets urging men to resist the government’s military draft, arguing that it violated civil rights under the Thirteenth Amendment, which prohibits involuntary servitude. He was charged with violating the Espionage Act of 1917, which made obstructing military recruitment and enlistment efforts illegal. To get straight to the point, the Supreme Court unanimously ruled against Schenck, since there existed an obviously “clear and present danger” in the sentences Schenck delivered.
In contrast, there’s not enough rationale to restrict speech and press solely for the case of the Gwangju Uprising, but only the distorted intention of exploiting historical incidents in the Gwangju Uprising for political gains.
The German Criminal Code, Section 130 (Volksverhetzung or “incitement to hatred”) includes a paragraph, restricting any kind of statement of denying commitment under National Socialist Rule(so-called Nazi Rule); those followings are the clauses regarding this issue.
- Whosoever publicly or in a meeting approves of, denies or downplays an act committed under the rule of National Socialism of the kind indicated in section 6 (1) of the Code of International Criminal Law, in a manner capable of disturbing the public peace shall be liable to imprisonment not exceeding five years or a fine.
- Whosoever publicly or in a meeting disturbs the public peace in a manner that violates the dignity of the victims by approving of, glorifying, or justifying National Socialist rule of arbitrary force shall be liable to imprisonment not exceeding three years or a fine.
Democrats mentioned this part of Section 130, regarding victims of Holocaust, a crime held by Nazi Hitler, and their related parties and administrators, as a precedent for Article 8. However, the legal, and legislative basis, which is the cornerstone for the legitimacy of article 8 ironically reflects their commitment to self-contradiction.
As mentioned above, section 130 of the German Criminal Code regards those who’re victims of Holocaust. On the other hand, Article 8 and the Act, the Gwangju Uprising, which is more likely to be a resistance movement, rather than victimhood. If they were to compare the Gwangju Uprising with conditions under Nazi and World War II, they should have placed resistance fighters of the Gwangju Uprising against Chun, in the position of La Résistance, the French Resistance force against German occupation in World War II.
No such countries are having barriers of speaking and debating freely on resistance movement, except for the countries like China, and North Korea, where communism, rather than freedom and republicanism, is the cornerstone of the country’s ideology. Article 8, mostly inspired by Section 130 the German Criminal Code, therefore, loses its logical legitimacy, unless they assert there’s no problem for accepting the ideology from the mentioned Communist-based Countries.
Deep analysis on how Article 8 abridges the Freedom of Speech and Press.
Vagueness Doctrine
I think I have to recite the German Criminal Code, Section 130 (Volksverhetzung or “incitement to hatred”) in order to compare with Article 8 of the Gwangju Uprising Special Act once again. Unlike the case of Nazi and its committed crime, Holocaust (most of the truth already has been enclosed over more than hundred of years through successful investigation and confirmation) debate on the Gwangju Uprising occurs still, vividly; therefore the problem lies in the fact that the existence of law itself could harshly abridges the freedom of speech, especially for those who are engaged in the field of related studies.
Since the Uprising took place for merely about 40 years, which is never enough amount of time for any kind of investigation to be fully developed, and still remains a lot of unsolved, mysterious parts, false information remains pretty much vague especially in this historical context, compared to other historical affairs like Holocaust, which took place for about more than 100 years and most of the facts already have been enclosed; therefore, judicial branch, within the context of regarding the issue whether someone had committed spreading false information, become almost impossible to discriminate if someone committed the crime of disseminating false information due to its inherent, and inevitable vagueness in the context of ongoing investigation in historical field. This is not a problem of judges—but rather, law itself.
Chilling Effect
However, some might argue Section 2 of the Article 8 prevents potential victims of misjudgment, yelling “There’s a clause of excluding those who’re conducted for the purpose of academic search, theories and so forth from the scope of penalty!” For the sake of further argument, let’s assume that there’ll only be precise decisions, and no misjudgment on judging someone tried or convicted for disseminating false information. Unfortunately, the problem still remains, since there will still be remnants of side effects led by the existence of law; this side effect—left beneath the problem of whether the judicial branch could judge properly— can be referred to as the chilling effect, which will never disappear within Article 8, unless the law itself disappears.
By definition, the chilling effect is about inhibition or discouragement of the legitimate exercise of natural and legal rights by the threat of legal sanction. In the case of Article 8, natural and legal rights will be civilians’ right of free speech and press, and the threat of legal sanction will be punishment according to Article 8. The chilling effect operates as crucial criteria while the judicial branch interprets and makes judgment on issues of restricting freedom of speech and press.The well-known court case of New York Times Co. v. Sullivan (1964), which is commonly recognized to be a landmark decision of freedom of the press, also embraces the issue of the chilling effect.
During the civil rights movement in the American South, The New York Times published an advertisement supporting Black civil rights activists, also containing criticisms of police actions, including allegations of excessive force at the same time. As a response, L.B. Sullivan, the police commissioner of Montgomery, Alabama, sued The New York Times for libel, claiming that advertisement from The New York Times defamed him. However the Supreme Court didn’t rule in favor of him, rather held that public officials cannot claim defamation unless they prove that the false statements were made with knowledge of falsehood or reckless disregard for the truth: Actual Malice.
The court officially made a decision in favor of stakeholders—Press, including The New York Times—on free speech and press, ensuring their right to speak and press with relieved fear of being silenced through libel suits. Superficially, it seems like the decision only holds significance on defining the necessary condition, actual malice, for libel. However, by showing that public officials—highly related to the government—cannot easily sue for defamation of matters of public concern at the same time, the Court prevented a chilling effect from hindering free speech and press of the nation. Despite that the court didn’t mention the term, chilling effect, exactly, they recognized that legal sanctions or the threat of lawsuits could lead to a chilling effect on free speech.
The same legal standard should be applied to evaluating Article 8 of the Gwangju Uprising Special Act; therefore, it’s not hard to assume that, besides all concerns, just the existence of the law itself could harshly infringe the right on free speech and press, since there still remains a chilling effect.
By the way, stressing out or exaggerating on concern of the chilling effect doesn’t necessarily lead to protection of unbridled freedom of speech and press. As mentioned in the prior paragraph, no such concept like absolute freedom exists—which means freedom of speech and press could be restricted for the sake of other interests. For example, the freedom of speech and press was—partially—sacrificed for the sake of the interest of avoiding blasphemy in the legal context of Wingrove v. United Kingdom in 1996, U.K.
British filmmaker Wingrove produced a short film titled “Visions of Ecstasy,” prone to blasphemy, intertwined with erotic content. The British authorities banned the film, since blasphemy was a crime at the time under UK law. Felt deep resentment with the ban, Wingrove appealed and brought the case to the European Court of Human Rights (ECtHR), claiming that the ban would create a chilling effect by discouraging other artists from producing works that might be censored by the government. However, unlike the decision in the case of New York Times Co. v. Sullivan (1964), the court ruled in favor of the U.K., asserting national authorities are allowed discretion in dealing with sensitive matters like blasphemy. Countries in Europe somehow tend to make some decisions like this; not because they don’t appreciate the value of freedom of speech and press as a natural right of human beings. Rather, they tend to weigh other values over free speech and press in the context of judicial evaluation more than in the U.S.—in this case, cultural and religious sensitivities in European Culture.
Considering the fact that the right of free speech and press are not totally safe from judicial review which causes partial restriction on the right (even if there might be a potential of allowing chilling effect), judicial scrutiny is required for making judgment on constitutionality of law, abridging free speech and press. Since it’s obvious enough to confirm that Article 8 infringes the right on free speech and press by prior investigation, the only left issue on Article 8 is if there’s sufficient reason to justify its infringing on free speech and press of historical affairs—the Gwangju Uprising; this will finally determine the result of constitutional review.
Scrutiny on Article 8
By taking a look for the proposed reason of the bill, coincidently submitted to the Congerss when bill of Article 8 of the Gwangju Uprising Special Act was proposed, we can notice that the major purpose of the proposing bill was to prevent what is called social repercussion led by gook-lon-boon-yeol; the chinese character gook refer to as nation, lon as opinion, and boon-yeol as division—therefore, meaning of preventing the devision of national opinion.
Unlike actual threat Schenck delivered during the World War I, Social Repercussion led by gook-lon-boon-yeol seems to be a vague, unclear and unrealistic, since they’re not claiming what kind of specific loss will be caused; on the other hand, sacrificed freedom of speech and press is will be deadly immense.
Moreover, the major purpose of legislating the article, found in the proposed reason of the bill, seems to be a dangerous idea. It is understandable to have morally proper interpretation for victims, and commonly accepted understanding in the academic field of history. But that doesn’t mean, legislative, or judicial branch of the government could confirm each idea to be correct or not, and establish so-called national opinion. There strictly exists a line that divides what law should be engaged in, and not; and at least not for the field of history and opinion, obviously. What Democrats have done is to build their authority in their political favor by determining what is a correct interpretation of the resistance movement by declaring national opinion. Not only unconstitutional, but this is a genuine ideological threat to define what is the right opinion in the free country—where free speech, press, and debate without a concern of governmental sanctions should be ensured.
The Gwangju Uprising was held with dreams to take back natural rights, value of representative democracy and republicanism from authoritarian governments; paradoxically, a party that has consistently benefited from the Gwangju Uprising by boasting out they are the one and only party inheriting its spirit, is now committing the same crime that once already had been perpetrated under Chun’s regime. The concept of limited and small government is the cornerstone of republican and free country; protestors of the Gwangju Uprising fought for that.
Koreans thought that evil had been defeated by the Uprising held in Gwangju; however, now they are facing a new form of evil with a more cunning and deceptive face—establishing untouchable authority for the sake of political benefits.
There’s two options available to choose: to stay in comfort or to resist against authority, as civilians in Gwangju once fought for freedom and liberty. No one can force one to choose either option, however I’ll end the review by reciting the quote of Martin Niemöller once again.
“First they came for the Socialists, and I did not speak out,
Because I was not a Socialist.
Then they came for the Trade Unionists, and I did not speak out,
Because I was not a Trade Unionist.
Then they came for the Jews, and I did not speak out,
Because I was not a Jew.
Then they came for me,
and there was no one left to speak for me.”
—Martin Niemöller
By: Donggeon Kim
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