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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.
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.
This book explains the past and present status of hate speech regulations in Japan. The United States and European countries have adopted different approaches to resolve their respective hate speech problems. Both of them, however, continue to confront the dilemma that freedom of speech and anti-racism are fundamental values of human rights. Therefore, some scholars criticize the US approach as too protective of freedom of speech, while other scholars criticize the European approach as impermissibly violating that freedom. Compared to these countries, Japan is unique in that it does not criminalize hate speech and hate crime other than in the recently enacted Kawasaki City Ordinance criminalizing some kinds of hate speech. Japan basically relies on a comprehensive set of non-regulative tools to suppress extreme hate speech. This volume analyses Japanese hate speech laws and suggests a unique distinctive model to strike a balance between both core values of democracy.