In a recent Yahoo! Japan article, the editorial department of Japanese law consultation website bengo4.com collected lawyers’ opinions about hate speech regulations in Japan in response to Tokyo governor Masuzoe Yoichi’s recent request that Prime Minister Abe Shinzo introduce legislation to deal with hate speech in Japan.
Hate speech has become a real problem in Japanese society as hate groups such as Zaitokukai become more and more vocal in their discrimination against Zainichi Koreans and other foreigners living in Japan. Now, Governor Masuzoe is concerned that Japan’s growing reputation for right-wing racism could endanger plans for the Tokyo Olympics in 2020.
While the article gave a balanced variety of responses on the issue, and in fact showed slightly more lawyers who took their survey in favor of hate speech regulations than against, Yahoo netizens almost unanimously came out against new legislation, with many citing concerns about limits to freedom of speech. Somewhat ironically, many commenters also used the article as an opportunity to vent their negative opinions about Korea and China.
From Yahoo! Japan:
Should “Hate Speech” Be Regulated By New Legislation? “Pros and Cons” From 13 Lawyers
Should the ever more frequent act of hate speech be regulated by law, or not? Tokyo governor Masuzoe Yoichi has requested that Abe Shinzo create legislation to deal with hate speech against Zainichi Koreans.
According to the media, Governor Masuzoe met with Prime Minister Abe in early August and alluded to the need for new legislation, stating, “It’s a challenge against human rights. It’s embarrassing for Tokyo, which is now preparing for the Olympics, to overlook this.” In response, Prime Minister Abe also pointed out, “It injures Japan’s pride,” and indicated his intention to investigate the Liberal Democratic Party’s way of coping with this issue.
There are also those who oppose regulation of hate speech from the perspective of “freedom of speech,” but are new legislative measures necessary? We asked for the opinions of lawyers registered at bengo4.com.
● Opinions Split On For vs. Against
Are you for legislation regulating hate speech, or are you against it? We raised this question at bengo4.com, and had respondents choose between the following three options.
1. I am in favor of legislation regulating hate speech. → 6 votes
2. I am opposed to legislation regulating hate speech. → 4 votes
3. I don’t agree with either statement. → 3 votes
We received answers from 13 lawyers. It became clear that the answers were dispersed between “for legislation,” “against legislation,” and “neither,” and that opinions on the matter are split.
Next, we will introduce below the full text of the opinions that ten of the lawyers expressed in the free-text field of the survey. (The comments are published in order of for → against → neither.)
●Opinions For Legislation Regulating Hate Speech
Lawyer Akiyama Naoto
“While the guarantee of freedom of speech is extremely important, we can’t allow the abuse of human rights. The kind of speech that we call hate speech clearly crosses into an abuse of freedom of speech, and is discriminatory and full of hate. This kind of speech considerably damages the sense of honor, self-respect, and personal rights of those subjected to it, so I think it should be regulated and punished as an abuse of human rights. I support regulatory legislation that establishes careful limits from the perspective of freedom of speech.”
Lawyer Morikawa Masayoshi
”Even when it comes to rights determined by the constitution, I believe that we have no choice but to regulate behavior that exercises those rights in a way that causes considerable trouble for others. Because the loud noise of the so-called right-wing declaring their triumphant return and their use of megaphones aimed at pedestrians on narrow streets is a problem, and because the content of that speech is insulting to specific people to the extent of being slander, I think that makes them subject to punishment. Therefore I think that regulation is not only possible, but appropriate. “
Lawyer Ibayashi Tsugio
”Hate speech is a phenomenon that should be considered a manifestation of third-world values. In pre-war Japan, education was carried out that encouraged people to despise Korean and Chinese people, and it seems that traces of that education still remain among people in certain areas and members of the right-wing. Now, it seems right to create legislation and prohibit racism. We established the UN’s International Convention on the Elimination of All Forms of Racial Discrimination, and the Japanese government created laws in response to the treaty, but due to the dissolution of the Diet these laws were abandoned, and since the change of administration, no legislative measures have been accepted. These laws are necessary to prevent us from falling behind internationally, as well.”
Lawyer Oonuki Kensuke
”I often participate in advocacy activities on behalf of foreigners, but I run into discriminatory thinking on a daily basis. There is deep-rooted discriminatory thinking in Japan’s courts, administration, citizens, media, everywhere you look. However, most people don’t realize that they themselves are discriminatory. We have no choice but to reform Japan’s deep-rooted discriminatory thinking through laws with progressive content. On the other hand, unfortunately, at present it is extremely dangerous to have Japanese police crack down on the discrimination problem. Therefore, I think we should consider a system similar to an exclusion order, where hate speech is regulated not using the penal system, but incorporating aid through simple procedures such as labor courts and counsel from institutions independent from the current administration.”
●Opinions Against Legislation Regulating Hate Speech
Lawyer Kanegae Keiji
“First of all, I have absolutely no intention of defending hate speech, and I personally despise it, but I am against legally imposing a new regulation on speech. Freedom of speech is essential for maintaining a normal democracy. In particular, the protection of political speech is the most important aspect of freedom of speech. And there is no doubt that hate speech has a political hue to it. (There is also the argument that discriminatory speech is beyond the bounds of freedom of speech, but I think that sort of distinction itself is dangerous.) An act of expression or opposition, even if it is misguided speech that promotes discrimination and prejudice, should be dealt with through current laws against defamation and libel, or through civil suits. I oppose regulation of hate speech, which would have a chilling effect on acts of expression and would carry a high risk of distorting our democracy. Recently, starting with the Secret Information Protection Act, I feel that regulations against freedom of speech have been growing stronger. I would guess that there are some lawyers who support the regulation of hate speech from the perspective of protecting the rights of the minorities, but I fear that this would become a case of ‘throwing the baby out with the bathwater.’”
Lawyer Mitsumori Toshiaki
“To the best of our ability, we should avoid regulations against freedom of speech. If we were to create a foundation for legal regulation of speech, there would be a risk of a chilling effect on expression due to control through broad interpretations of that law becoming widespread. It is possible to regulate issues of freedom of speech, including hate speech, using current laws such as those against defamation and labor interference as a foundation, so I don’t think there is a need to go as far as creating new legal measures. “
Lawyer Hagiwara Takeshi
“Even hate speech is an ‘act of expression,’ so regulating it becomes an issue related to ‘freedom of speech’ (Article 21, paragraph 1 of the Constitution). Even within the system of rights guaranteed by the Constitution, ‘freedom of speech’ occupies a ‘superior position.’ This is because the act of expression, along with an individual’s self-actualization, are the prerequisites for democracy. Therefore, restrictions on ‘freedom of speech’ must be kept to a ‘necessary minimum.’ According to the current law, if an act of expression ‘harms another person’s life, health, honor, or property,’ it can be punished as intimidation (Article 222 of the Penal Code), defamation (Article 230 of the Penal Code), or labor interference (Article 233 and 234 of the Penal Code). Since it’s possible to regulate hate speech through existing regulatory legislation such as the Penal Code, I don’t think there’s a need to establish further new regulatory laws. It seems that in America, regulations are limited to situations where there is a ‘realistic threat of provocation of violence and harm to the tranquility of the area.’ In our country, in order to establish new regulatory legislation we would need to prove the existence of the ‘legal fact’ of ‘realistic threat of provocation of violence and harm to the tranquility of the area’, and right now I can’t recognize that this legal fact exists.”
Lawyer Ooishi Masato
“I think that when it comes to dealing with ‘hate speech,’ there are plenty of ways to deal with cases on an individual basis through means such as defamation under the penal code or as illegal activity under civil law. There is a possibility of the definition of ‘hate speech’ being too vague or unclear, so I can’t help but say that targeting regulation that was previously broad and comprehensive would be difficult. If the definition is vague, it will naturally be accompanied by a chilling effect on freedom of speech, which would prove a threat to our democratic government.”
●The “Neither” Opinion
Lawyer Okada Akitomo
“I think that hate speech itself is not something with any value. However, when I think of the standpoint of the democratic system of freedom of speech, I don’t think we should simply regulate it. The delineation of what qualifies as hate speech is also difficult. If it’s regulated by the majority rule, the right to speech of the minority will be damaged. We must consider the fact that freedom of speech is an easy right to break. However, when it comes to the idea that we should allow it without limits, I have doubts there as well. There’s the broken windows theory, and there’s also the danger that most hate speech may promote crime against a particular individual. Neglecting to do anything about hate speech could lead to war with another country and ultimately bring about the destruction of our right to expression itself. Or, we could fall into mob rule, which would actually cause the democratic system to dysfunction. I couldn’t come to a conclusion after thinking about it for only 2 or 3 days. At any rate, I believe this is not a problem where we should jump to a simple conclusion. “
Lawyer Kawakami Marie
“My thinking is, ‘We should regulate it, but it’s premature.’ Hate speech doesn’t merit being considered speech, and there are countries who have regulated it with positive results. When I ask myself what’s different between those countries and Japan, I think it’s a question of whether citizens can keep a vigilant guard to prevent the country from applying the law arbitrarily. When our country exercises control by interpreting the laws to say that someone’s conduct is illegal, there are so many people who just think ‘the authorities say it so it must be so,’ without pausing to doubt that interpretation of the law at all. There are so many people who just brush demonstrations off as ‘noisy’ or ‘troublesome’ without thinking about how important the right to demonstrate is. I think that in Japanese society, the notion of freedom of speech over regulation hasn’t fully penetrated. I think that right now, we lawyers must put all our efforts into encouraging citizens to speak out against the power of the state, so that we can continue our inconvenient existence. Then, once speaking about the constitution and learning about your rights has become commonplace among the people, when we have the power to prevent people from using their rights to get away with doing whatever they please, at that point I think we should certainly regulate hate speech.’
[From the Editorial Department of bengo4.com]
Comments from Yahoo! Japan:
So is the nationalistic hate that happens in Korea is OK, then? I think they’re way worse than us.
It makes me super uncomfortable that Koreans and Chinese, even though those aren’t really victorious nations, think that they’re victorious nations so there’s no problem with discriminating against people from the defeated nation of Japan, and then they play innocent to the practice.
It’s completely the same reasoning as the Bill for the Protection of Civil Rights. There’s no set definition of hate speech. The current situation, where just calling China “China” the way the Westerners say it [as opposed to the proper Japanese name for China, “Chugoku”] becomes discrimination, and we have to constantly question whether every single word a Japanese person says might hurt the feelings of China and Korea, is abnormal.
Recently, the people who yell extreme things at demonstrations about freedom of speech and stuff have been saying that for hate speech “let’s crack down on it through the law”… Isn’t that weird?
In Korea they repeatedly commit demonstrations and hate speech against Japan practically every day!!… Shouldn’t our first priority be to object to this?!!
We must not forget their anti-Japanese policies. Just letting it alone to take care of itself is no good.
Since it’s not necessarily pointing out one specific individual, defamation doesn’t apply, so it’s freedom of speech. In Korea there’s plenty of hate against Japanese people, and it’s not necessarily pointing to an individual. Leave us our freedom.
Since there’s no definition of hate speech, just ignore it!!
It’s possible to prosecute intimidation and defamation under the Penal Code. We can’t limit freedom of speech. Of course, those who have committed hate speech should take full responsibility, and it’s a huge mistake to think that any kind of expression is allowed just because there’s no regulation. It’s just difficult to determine how to make people in countries that hate Japan understand us. All I can think of is to view anti-Japanese education as a problem and complain to the international community about it. Even if we do that, there are countries that control information and don’t communicate the truth, so it’s troublesome. Even now, it seems that Fukuzawa Yukichi may have been right when he instisted on an “Escape from Asia” theory.
There are people and groups who have been raising the opinion that hate speech in Japan should be regulated, but it becomes incoherent from the question of “Why would we only prohibit hate speech against Zainichi Koreans and not prohibit hate speech against Japanese people?”
We tolerate Korea being anti-Japan. We give Asahi Shimbun freedom of the press. We allow all this shit?! Isn’t this all because of Korea?! It’s only natural that Japanese people are angry!!
You lawyers in favor of regulation, come see the hate speech against Japanese people that happens outside the Korean embassy every Wednesday! They burn the rising sun flag, light dolls with the Japanese Prime Minister’s face on fire, they behead our national bird, the Japanese pheasant, while it’s still alive, and the worst time they even lit pictures of the Emperor’s face on fire. What do you call this, if not hate speech? Enough already? Fucking anti-Japanese traitor lawyers!
The problem is the Hwabyeong people who stomp on, bite, piss and shit on, and burn the rising sun flag. They’re already past the breaking point, it’s hard to forgive.
If we’re going to prohibit hate speech in Japan, then let’s demand similar measures in Korea. Otherwise we have to create a law against pro-Korea activities, because they already have laws against pro-Japanese activities over there.
I’m opposed to racism, but I’m also opposed to limiting our right to criticize countries that lie!
Well, since we already have Article 21 of the Constitution, a law prohibiting hate speech would never pass the Diet, and even if it somehow passed it would be invalid due to unconstitutionality. Anti-Japanese activity on the part of Zainichi Koreans and Asahi Shimbun and the like are also protected by Article 21 of the constitution. But I don’t think that’s ok either. We should repeal Article 21 and impose penalties on anyone who commits anti-Japanese activities within Japan. Of course, it wouldn’t matter if the activities were committed by Japanese people or Koreans. Then, in exchange for that, we could also prohibit hate speech against Koreans. Wouldn’t that work out nicely? I believe that if we get rid of the anti-Japanese gooks, all the foul-mouthed hate speech will also go away.
At least given the Korean propaganda and activities to hand out manifestos for foreign settlement corporations, we shouldn’t simply rush to regulation. In Japan, freedom of speech and freedom of expression are protected by the Constitution, so we shouldn’t be able to create a biased regulation that infringes on those rights. It’s possible that a regulation targeting a single race will conversely end up giving favorable treatment to that race, it’s a double-edged sword. Also, the scope and degree to which hate speech is acknowledged would just be vague and confusing. If we’re going to regulate it, it would need to apply to all of the races, including both domestic and foreign anti-Japanese speech and anti-Japanese activity. We must only pursue cases according to our society’s Constitution and the Bill for the Protection of Civil Rights, and we can’t have a system of coercion which would allow our houses to be searched indiscriminately. Just like the false accusation of molesters, as soon as you’re sued your life is immediately over. I hope for cautiousness upon cautiousness in this discussion so that such horrible, irrational things won’t happen.
Korean people say things about Japan like, “Kill the Prime Minister,” and “The flood disaster from the earthquake and tsunami were divine punishment from God!” and they do things like burning the national flag and photos, isn’t there plenty of hate and hate speech in that? Huh? Baldy Governor Masuzoe. Even if it’s the same kind of demonstration, only Koreans get overlooked, while Japanese people get punished!? Regulating it with law, what an enormous joke of a country Japan truly is.
It’s completely meaningless to discuss banning hate speech in Japan while we give a pass to the strange anti-Japanese demonstrations by Koreans and Chinese, which are the root cause of the issue in the first place. If we shut out the Zainichi Chinese and Koreans who feed off Japan while living care-free, we would immediately solve the hate speech problem.