Among the cases at which the author looks in this chapter is one in which a district court issued an injunction against a hate demonstration attacking Koreans planned for an area in which many Koreans live. The decision referred to the right of Korean residents to live in their houses in peace. It referred to the Hate Speech Elimination Act and did not recognize the hate demonstration as expression to be protected constitutionally. In this way, the court privileged the personal right over the constitutional freedom, regarding the ‘peace’ to which these individuals were entitled as including a freedom from mental harm. Moreover, the court held that the feelings and beliefs harboured by those with roots outside of Japan toward their ethnicity are deeply rooted in individual dignity. This enabled it to decide that the hate demonstration’s infringement of the right to dignity was serious. The author criticizes this reasoning and asks whether the court’s use of the Act does not go too far. He proposes instead that the most relevant detail of the case was the fact that the demonstration was planned for an area in which many Koreans are resident, meaning that the utterance of hate speech there would arouse a very real sense of fear and infringe their concrete rights.

The Government of Japan has an obligation to enact anti-hate speech laws based on Article 20 ICCPR (prohibiting the advocacy of national, racial or religious hatred) and Article 4(c) ICERD (preventing public authorities or public institutions, national or local, from promoting or inciting racial discrimination), although it has reserved Article 4(a) and (b) ICERD. If we interpret the Constitution of Japan in conformity with international human rights treaties, article 13, in conjunction with article 21, of the Constitution guarantees freedom from infringements of human dignity resulting from hate speech, incitement with clear and present danger, and intimidation or threat of illegal violence. Criminal penalties are already permitted in these cases. It is, however, also important to provide in law for administrative measures to prevent hate speech and to regulate against ethnic harassment in workplaces and universities. This chapter analyses hate speech regulations in countries such as Germany, the United Kingdom, Sweden, France, Canada and the United States, and discusses the challenges and prospects of regulations in Japan.

This chapter offers an outline of the Hate Speech Elimination Act and analyses some of its issues. When the Japanese Diet enacted the Hate Speech Elimination Act in 2016, it was the first law to directly tackle hate speech. The law is unusual because while it clearly declares hate speech to be impermissible, it imposes no penalties upon it. On the one hand, one might argue that the Act properly balances equality and freedom of speech; on the other hand, one might question its effect in combating hate speech. It should be emphasized that the Act requests the national and local governments to implement educational activities to eliminate unfair discriminatory speech and behaviour, as well as to raise awareness among the general public about the issue. Such government activities can be interpreted as a type of ‘government speech’, which can be used to discourage and deter hate speech while avoiding constitutional problems. As such, the Japanese Act may present a modest model that strikes an appropriate balance between freedom of speech and anti-racism.

In Japan, hate demonstrations and Heitobon (‘hate speech books’) that contained hate speech peaked in 2013–14. Even now, some print media still contain hate speech. In contrast, broadcast television has largely escaped the airing of hate speech because broadcasters are governed by content regulations and ethical codes. In 2017, however, a local station in Tokyo aired a particular show, News Joshi (‘News Girls’), which included some defamation of protesters in Okinawa. The Broadcasting Ethics and Program Improvement Organization, a politically independent examiner of broadcast television, found that News Joshi violated ethical standards and human rights.

This chapter examines how foreign legal doctrine has affected constitutional judicial review in cases involving freedom of expression in Japan. Academics have studied free speech in the context of comparative law because the current constitutional law in Japan, enacted under the instruction of General Headquarters by United States, and the former Meiji Constitution were both influenced by the German Constitution. In the early years of the current Constitution, the Japanese Supreme Court took a ‘public interest’ approach, absent any constitutional standard. Some have proposed a change to this situation, recommending the introduction of a US-style constitutional standard. However, the Supreme Court has not taken that standard to heart. On the commencement of a new law school system in Japan, other scholars advocated the German ‘proportionality’ principle because they thought that it better suited to Japanese case law. However, detailed examination of that case law suggests that the Supreme Court took neither approach. In this chapter, the author seeks to reveal the true nature of the doctrine employed in the constitutional cases and to explore the issue of hate speech from the perspective of this controversy over free speech.

Between December 2009 and March 2010, members of xenophobic groups attacked Kyoto Korean Daiichi Elementary School, organizing a series of three discriminatory rallies. When the school and the parents sought to fight back in the criminal and civil courts, they were met with obstacles: the undefined nature of hate speech, the legal system’s incapacity to deal with hate crime, and the Japanese majority’s lack of understanding of ethnic education, rooted in Zainichi Korean resistance against colonialism and assimilation. Charged under existing laws, four attackers were convicted in criminal court. The school’s persistence also paid off in victory in the civil courts. Inevitably, discussion of anti-discrimination legislation ensued, resulting in the Hate Speech Elimination Act of 2016 (the first anti-racism Act in Japan) and Kawasaki City’s anti-hate speech ordinance of 2019 (the first to stipulate criminal penalties). Nevertheless, many issues remain. This chapter reports the pain suffered by those subjected to the discriminatory attacks. It also discusses what it means for minorities to fight a legal fight and what issues persist even after victory.

After the surge of hate speech by far-right groups in the late 2000s, several such groups sought to use local public facilities to promulgate hate speech chiefly against Koreans resident in Japan. This led local governments to confront the difficult question of how to strike a balance between freedom of assembly (and expression), on the one hand, and the interests of minority residents, on the other. In this chapter, it is argued that local governments can sometimes refuse hate groups use of their facilities to protect local minority residents and that the guidelines issued by some local governments are constitutional despite some notable defects. Many constitutional law scholars in Japan will certainly oppose this conclusion, but this chapter contends that their position cannot be supported, because it overcategorizes conflicting interests and abstracts highly complex factors. It must be recognized that there are exceptions to free speech protections in relation to certain categories of hate speech. Some cases on the use of public facilities by hate groups constitute an example of such exceptions, because certain uses will clearly harm minority residents and thereby contravene the public purpose of establishment and operation of those facilities.

In this chapter, we examine the problem of Buraku discrimination – a traditional type of discrimination specific to Japan of which few Japanese people are aware. Similar to, but not the same as, the caste system in South Asia, Buraku were areas in which those involved in certain occupations considered distasteful were required to reside. At its most simple, the Burakumin (‘Buraku people’) are those descended from those living in these areas, but Buraku discrimination is more complex than this. The United Nations CERD has called on the Japanese government to address the issue of Buraku discrimination and the government asserts that it is fully committed to doing so. However, traditional Buraku discrimination is now manifesting as hate speech and online discrimination. The Dowa policy – a special measure that had aimed to tackle the issue – ended in 2002 and no new measures were put in place until 2016, when an Act for Eliminating Discrimination against Buraku was finally passed. This chapter focuses on three incidents that occurred in the 2000s as instances of hate speech and clarifies the modern characteristics of Buraku discrimination.

This chapter focuses on the struggle to deal with hate speech on the Internet, including concrete examples and an examination of the basic measures that Japan needs to adopt to deal address with this problem. The chapter concludes that there is a significant difference between discriminatory expressions attacking socially vulnerable minorities and expressions attacking the government and the socially strong majority, which have become the focus for debate on regulation. However, while discriminatory expressions are unpleasant, they remain mere expressions and should be treated as such. It should not be overlooked that discriminatory expressions often take on a political character because they are often focused on emphasizing equality. Regulation under the law should be based on both freedom of expression and the goal of eliminating discrimination itself, and in relation to the latter a blend of education and awareness-raising activities are called for, along with resolution by law that aims to inspire voluntary initiatives (self-regulation) among providers.

Countries around the world are commonly troubled with the problem of hate speech, but their responses vary. Constitutional law scholars often use two models for analysis: the US model, which hesitates to regulate hate speech not directed at particular persons, and the European model, which favours regulation, including of hate speech not directed at particular persons. Most governments regulate hate speech broadly, meaning that the European model has so far held sway, but this simple classification has been under reconsideration recently. On the one hand, the United States strictly regulates hate speech targeting particular individuals and it does so by means of hate crime or harassment laws. It is also said to adopt a rigid distinction between private and public spheres, tolerating a wide variety of private regulation in broadcasting, universities, workplaces, and so on. On the other hand, some European nations are unwilling to execute regulatory laws, thus watering down their effect. The contrast between the US and European models is useful for researchers.