[Reporter’s Notebook] The Constitutional Question Raised by the Acting Police Commissioner General

"For rallies where hate speech is a concern, we will partially restrict the march route and hold violators accountable through investigations." This is the response plan for hate rallies announced by Yoo Jaesung, Acting Commissioner General of the National Police Agency, at a regular press briefing on December 18. By defining the police's role as a preemptive blocker rather than a manager of rallies, these remarks pose a significant threat to constitutional values.

The Constitution of the Republic of Korea explicitly guarantees the freedom of assembly and association, prohibiting permits or censorship. The freedom of assembly is not merely the right for people to gather; it also includes the right to decide for themselves when, where, and how to express their opinions. The march route is a key factor that determines how effectively a message is delivered.

The Constitutional Court has consistently applied strict standards to restrictions on rally locations. In December 2022, the Court ruled that the provision of the Assembly and Demonstration Act that completely banned rallies near the presidential residence was unconstitutional. The Court stated, "When citizens seek to express their opinions to the president through rallies, the area near the presidential residence is the place where those opinions can be most effectively conveyed," and added, "A blanket and uniform ban on rallies near the presidential residence restricts a core aspect of the freedom of assembly." The Court further pointed out, "It is difficult to justify banning all rallies near the presidential residence solely on the assumption that there is a vague risk of violence, illegality, or unexpected incidents." The Court's previous decisions in 2003 regarding bans near diplomatic institutions and in 2018 regarding bans near the National Assembly, the Prime Minister's residence, and various courts were all based on the same rationale.

Currently, the police are not focusing on specific dangers, but rather on the nature and past history of rallies. This is highly likely to lead to selective intervention in freedom of expression. Restricting routes simply because the remarks of a particular group are controversial has a censorious effect, preemptively limiting a core element of assembly. The criteria for determining hate are also unclear. What constitutes hate, and at what point friction is expected, can only be based on the police's subjective judgment. Any restriction on fundamental rights must be clear and predictable. If marches are restricted based on abstract concepts, the freedom of assembly itself may ultimately be undermined.

The police's duty is to impose sanctions and maintain order only when a clear danger arises on the scene. If rallies begin to be blocked in advance, constitutional values can be curtailed at any time for administrative convenience. The repeated warnings in Constitutional Court precedents have been about the dangers of preemptive and comprehensive restrictions. Acting Commissioner General Yoo's remarks clearly reveal a perspective of public authority that views rallies as objects of control rather than protection. True democracy is proven by the tolerance to leave even uncomfortable expressions in the public sphere.