Lawand Society in Japan – Final Papervan der Plas, Maarten Adriaan Pieter, ID: 201518012,Date: Jan. 5, 2017TheRight to Hate: Constitutional Obstacles to Hate Speech Legislation in Japan 1.      Introductionand Research QuestionAftersignificant hurdles, Japan finally became a participant in December 1995 to the1966 International Convention on the Elimination of All Forms of RacialDiscrimination (CER). Yet, just as the United States, it attached areservation, saying that Japan will fulfill the obligations of the treaty tothe extent that it is compatible with the “rights of freedom of assembly,association and expression and other rights under the Constitution of Japan”.

Some two decades later, Japan’s Diet passed the Hate Speech Act of 20161, thefirst law of its kind. However, while the law aims to reduce hate speech, andwhile it arguably exists in order for Japan to fulfill its obligations under theCER2, inpart owing to the protection of the freedom of expression as found in theJapanese Constitution, it does not in fact lay out punishments for those whoutter hate speech3,and the act is unlikely to be very effective in stopping hate speech. Despiteincreasing international pressure on Japan to enact stricter regulations onhate speech, somewhat like the United States, so far, it has not enacted suchlegislation. This paper aims to find out why it is that Japan is so reluctantto penalize hate speech, and what obstacles are present in its constitution orlaw that make regulations difficult.2.       LiteratureReviewForstarters, in answering the above question, it is paramount to have a firm graspof matters concerning the Japanese Constitution, an in this regard, Ashibe’s “Kenp?”(2016) will be the primary literature to consult.

Nobuyoshi Ashibe may be themost renowned Japanese constitutional scholar, and his “Kenp?” can beconsidered an advanced introduction to the Japanese Constitution. For morein-depth analysis of free speech issues, Ichikawa (2003) will be referred to.This book deals with theories regarding the freedom of speech, and how Japaneseand US courts apply certain theories. As will be seen, much of free speechtheory and judicial practice originates in the United States, and although thisbook focusses on free speech and Japanese courts, references to importantAmerican cases are abound.

Since free speech theory is often related toAmerican jurisprudence, Hemmer’s “The Supreme Court and the First Amendment”(1986) will be used to understand such theory from an American viewpoint. Itwill be useful especially when considering the “clear and present danger test”,which, as will be seen, is often used in Japanese courts but originates fromthe US. Finally, Fisch (2002), which deals directly with hate speech and the USConstitution, gives more insight in the obstacles to hate speech regulation inthat country, and also considers possible ways to regulate hate speechalternatively under the libel law (“group libel law”).  3.       AnalysisDiscussionof the protection of free speech, and hate speech issues, is to start withmentioning Article 21 (1) and (2) of the Japanese Constitution: (1) “Freedom ofassembly and association as well as speech, press and other forms of expressionare guaranteed.”; (2) “No censorship shall be maintained, nor shall the secrecyof any means of communication be violated.

” Thus, Article 21 protects thefreedom of various types of expression. Yet, as is the case in mostdemocracies, the guarantee of freedom of expression is not limitless: mostdemocracies have laws prohibiting libel, obscenity or sedition, etc. Thus, insome cases, the government is justified in limiting the freedom of expression.Whendiscussing the constitutionality of regulations on forms of expression, it isfirst important to consider the so-called “double standard theory”. Accordingto this theory, courts are to be more rigorous and have to subject to morescrutiny legislation that limits “mental freedom”4 thanlegislation that limits economic freedom.

5 Thebasis for this theory is that: 1) such mental freedom (like freedom ofexpression), is necessary for a democracy to function at all, and it isnecessary to have a functioning democracy before any other governmentalregulations can be construed; 2) the fact that regulations on economic freedomare often highly technical, and courts are not as able to deal with theconstitutionality of economic policy as they are in dealing with matters of non-economicnature.6 Thus,legislation restricting freedom of expression is subject to the more rigorousconstitutional review.Legislationthat restricts freedom of expression can be characterized as either beingcontent neutral or content based. Though a relatively recent distinction, it isnow, in for example the American context, often a decisive factor whenconsidering the constitutionality of such legislation.7 Inthe US, restrictions that are content based are subject to far more rigorousscrutiny than content neutral restrictions. This distinction is now to be foundin Japanese jurisprudence too: a similar approach was taken by the JapaneseSupreme Court in the Sarufutsu Case.8 Inthis case, a statutory prohibition of public officials’ engagement indistributing political party-issued newspapers was found constitutional. Thisis because such acts have the “risk of undermining the political neutrality ofthe public official and the government organ to which he belongs”.

9 Thus,such prohibition’s aim was to stop the negative effects such expressions wouldhave, and not to stop the particular content of the expression. It thereforeconstituted a content neutral restriction, and was subsequently held to beconstitutional.10Thereis however considerable doubt as to whether it is justified to put greaterscrutiny on content neutral restrictions than content based restrictions, as itis not clear that either of the two has much greater potential to limit freespeech. Regardless, it does seem that Japan’s courts tend to be less rigorouswhen it comes to content neutral restrictions.11 Ifit is true then, that the Japanese judiciary is extremely rigorous vis-à-viscontent based restrictions on freedom of expression, and if it is also truethat restrictions on hate speech are to be categorized to be of the sort thatis content based, it would follow that restrictions on hate speech are to besubjected to the most rigorous of constitutional review. There are, however, noJapanese Court decisions as to whether restrictions on hate speech are to becategorized as content based restrictions however, because Japan has hithertonot enacted such legislation in the first place.12Ofcourse, it is noteworthy that in some cases, content based restrictions areconstitutional. Developed first in an American context, the “clear and presentdanger test” (hereinafter: “the Schenk Test”) offers some insight in howcertain content based restrictions do not violate the First Amendment.

Thistest was developed in the beginning of the 20th century, in thecontext of the First World War and the constitutionality of the federalEspionage Act of 1917. 13According to Justice Holmes: “The question in every case is whether the wordsused are in such circumstances and are of such a nature as to create a clearand present danger that they will bring about the substantive evils thatCongress has a right to prevent.”14 Topass the Schenk Test, it is necessary that: 1) the speech has a clearpossibility to cause real harm in the immediate future; 2) that such harm isgreat and immediate; 3) and that the restrictions are absolutely necessary toprevent such harm.15 Itis therefore an extremely rigorous test. Looking at the context in which thetest was developed, it is important to note that it is also very much dependenton the social context.

Holmes argued in the Schenk that while inordinary times, Schenk’s conduct would have been within his constitutionalrights, the circumstances of his situation (the country being at war) made hisexpression to be outside the boundaries of protected speech.16Thus, if, say, hate speech in Japan, for some reason would cause clear andpresent danger, it is conceivable that its restriction through legislationwould be constitutional.Twoimportant cases, one regarding the distinction between content neutral andcontent based restrictions, and the other concerning the Schenk Test, will beconsidered. In R.

A.V. v. City of St. Paul, Minnesota (1992), the USSupreme Court decided that, while fighting words (face-to-face insults that arelikely to start an immediate fight) are not subject to the protection of theFirst Amendment (this seems intuitive if one applies the “Schenk test”),punishing a particular form of fighting words based on its content, requires atleast the evidence that it is necessary to punish such particular form becauseit has the chance of causing considerably greater harm.17Again, this is a clear example of the distinction made between content neutraland content based restrictions, for a broad ban on all fighting words would bepermissible.

In Brandenburg v. Ohio, 395 U.S. 444 (1969), Brandenburg, amember of the Ku Klux Klan, was convicted under the Ohio syndicalism statute.He appeared in a film where he delivered the following statement: “The Klan hasmore members in the State of Ohio than does any other organization, but if ourPresident, our Congress, our Supreme Court, continues to suppress the white,Caucasian race, it’s possible that there might have to be some revenge taken.We are marching on Congress, July the Fourth, four hundred thousand strong.”18 TheSupreme Court decided that Ohio’s statute was not permissible, because theguarantee of freedom of expression does not allow a state to prohibit advocacy.

Moreover, “speech which calls for illegal action but does not seek immediateaction is protected. In addition, speech which calls for immediate illegalaction but where there is reason to believe that the audience will not commit theaction is also protected.”19 Thisdecision seems to have revived the Schenk Test.

20Mayit then be possible to protect minority groups from hate speech through theestablished criminal and social wrong of libel? “Group libel” has rarely beenused in this sense with success, and the only US Supreme Court case that dealtwith the issue directly is Beauharnais v. Illinois, 343 U.S. 250 (1952).

21While most of the judges in this case agreed that it is at leastconstitutionally permissible to extend state libel laws to protect collectives,Beauharnais is now broadly considered to no longer be good law, becauseof restrictions placed on libel being an exception to the First Amendment.22 Still,at least in a Japanese context, it is possible that existing laws on libel,defamation, etc., can be somewhat effective in condemning and punishing hatespeech (in one Supreme Court case, the plaintiff was able to receive damages).23Still, whether the existing laws of Japan offer a balance between theprotection of free speech and the restriction of hate speech is debatable.4.

       ConclusionAswe have seen, though Japan recently passed the first law that specificallyaddresses hate speech, this law itself will likely be ineffective (and wasperhaps not supposed to be effective) in combatting hate speech, and it may beinterpreted rather as a way for Japan to fulfill its obligations underinternational treaties. Similar to the United States, Japan has no regulationson hate speech, and in fact, the doctrines the courts use share manysimilarities to US jurisprudence. This might have to do with the fact that theFirst Amendment and Japan’s Article 21 are quite similar, as well as the factthat Japan’s Constitution was largely drafted by the Americans. We have seenthat the courts adopt a double standard in constitutional review, whererestrictions on “mental freedom” are subject to greater scrutiny thanrestrictions on economic freedom. Furthermore, restrictions on freedom ofspeech that are content based are subject to far greater scrutiny thanrestrictions that are content neutral.

As we have seen in the Sarufutsucase, the Japanese Supreme Court seems to be taking this view. Thus, thoughJapanese legal precedent is not available, it is likely that hate speechregulation will be categorized as both being a restriction on mental freedom andbeing content based restrictions, meaning that it will be subject tothe utmost scrutiny. This perhaps explains the reluctance of the legislature tolegislate such laws. To be sure, this is not to say that laws falling in theabove two categories, as hate speech likely would, are always unconstitutional.

In an American context for instance, with the Supreme Court adopting the “SchenkTest”, some content based statutes were found to be constitutional. However, itbears mentioning that the Schenk Test is an extremely rigorous test, and itwill be the rare statute that passes it. We have considered two US SupremeCourt cases, R.A.V.

v. City of St. Paul, Minnesota (1992) and Brandenburgv. Ohio, 395 U.S. 444 (1969), that make clear just how hard it is to passthe Schenk Test. Finally, we have considered the possibility of restrictinghate speech through “group libel” rules, but in a US context, this has so farnot been successful.

Regardless, the question remains as to whether Japan’sexisting laws on defamation, libel, etc., are sufficient for it to fulfill itsinternational obligations and to deal with domestic hate speech problems.5.       Bibliography·        Ashibe, Nobuyoshi.

“Kenp?” 4thEdition. Tokyo: Iwanami Shoten (May 2016)·        Chemerinsky, Erwin. “Content Neutrality asa Central Problem of Freedom of Speech: Problems in the Supreme Court’sApplication”. 74 Southern California Law Review 49-74 (2000) https://scholarship.law.duke.edu/cgi/viewcontent.

cgi?article=1706=faculty_scholarship(accessed on Jan. 8, 2018)·        Fisch, William B. “Hate Speech in theConstitutional Law of the United States”, 50 Am. J. Comp. L.

463 (2002)·        Hemmer, Joseph J. “The Supreme Court andthe First Amendment”. New York: Praeger Publishers (1986)·        Ichikawa, Masato. Hy?gen no Jiyuu nohouri (????????).

Tokyo: Nihon Hy?ronsha (February2003)1 InJapanese: “????????????????????????????????????”2 Osaki,Tomohiro (May 24, 2016). “Diet passes Japan’s first law to curb hate speech”.Japan Times.

Accessed Dec. Jan, 2018: https://www.japantimes.co.jp/news/2016/05/24/national/social-issues/diet-passes-japans-first-law-curb-hate-speech/#.WgX0MmT81QI3 Yoshino,Tar? (May 24, 2016) “????????????????????????????????”.

Huffington Post. Accessed Jan. 5, 2018: http://www.huffingtonpost.jp/2016/05/24/hate-speech-law_n_10117236.

html4 In Japanreferred to as “?????”, seeAshibe (2016)5 Ashibe(2016), pp 193 – 1946 Ibid.7 Chemerinsky(2000), p 538Keish?, Vol. 28 No.

9, p 3939Summary of the Judgent (decision), English translation from http://www.courts.go.jp/app/hanrei_en/detail?id=1180(accessed Jan. 6, 2017)10 Ichikawa(2003), pp 76 – 7711 Ashibe(2016), p 19712 Ichikawa(2003), p 5513 Fisch,William B. Hate Speech in the Constitutional Law of the United States, 50 Am.J. Comp.

L. 463 (2002)14 Schenckv. United States, 249 U.S. 52 (1919)15 Ashibe(2016), p 20816 Hemmer(1986), p 1317Fisch (2002), p 46518 Quoted fromHemmer (1986), p 1819 Ibid.20 Ashibe(2016), p 20921 Fisch(2002), p 47822 Volokh,Eugene.

“No, there’s no “hate speech” exception to the First Amendment”. TheWashington Post, May 7, 2015. Accessed Jan. 6, 2018: https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/05/07/no-theres-no-hate-speech-exception-to-the-first-amendment/?utm_term=.3698ef3e331e23 Ashibe(2016), p 196

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