by Erik Bleich
When eight Zaitokukai activists proclaimed loudly and publicly in 2009 and 2010 that students in a nearby Korean school were “children of North Korean agents,” and demanded that ethnic Koreans be expelled from Japan en masse, they crossed the line from complaining about immigration and the stresses of multiculturalism to inciting racial hatred.
This has been a major issue for Japan, as the United Nations Human Rights Committee has rebuked the country for its failure to pass and enforce laws against hate speech and racial discrimination. Even though the Japanese Supreme Court recentlyupheld a ruling against these activists, when compared to most other liberal democracies, Japan lacks a well-established law that can be used to punish aggressive racist speech targeting vulnerable members of society. Japan needs a new law now.
Japan acceded to the United Nation’s International Convention on the Elimination of All Forms of Racial Discrimination in 1995, almost thirty years after the Convention was adopted. At the time, Japan expressed a reservation about enforcing Article 4 of the Convention which outlaws hate speech and hate groups. The government’s rationale was that any restrictions had to be compatible with the “guarantee of the rights to freedom of assembly, association, and expression and other rights under the Constitution of Japan.”
Since 1995, there has been little progress. This fall, lawmakers in Japan drafted a bill that would forbid discriminatory speech based on race and other characteristics. While the initiative was backed by several political parties, Justice Minister Yoko Kamikawa declined to pursue it, asserting that “criminalizing hate speech would risk infringing on the legitimate right to free speech.”
Japan isn’t the only country that has struggled with balancing the goals of upholding fundamental freedoms while also fighting egregious racism. The United States expressed a similar reservation when it ratified the UN Convention, and the U.S. Supreme Court has steadfastly refused to allow any restrictions on racist statements made in public places. Its stance privileges freedom of speech over the harms that may come from expressions of racism.
Most other liberal democracies have passed laws against hate speech; Germany did so in 1960, Great Britain in 1965, and France in 1972. Hate speech laws recognize that freedom is a critical value, but so is human dignity and social stability. When people use their freedom to stir up hatred against others, it not only limits the well-being of the victims, it can also generate tensions within society. In the worst-case scenario, it can stigmatize and demonize groups in a way that leads to human rights abuses.
The actions of the Zaitokukai activists are exactly the type of negative actions that properly designed hate speech laws can easily address. To give one example, the French law prohibits abuse, defamation, or provocation to discrimination, hatred or violence on the basis of ethnicity, nationality, race, or religion. It does not forbid offensive speech or controversial debates about issues of public policy. France’s law has served as a signal to members of society—both the powerful and the vulnerable—that freedom of speech ends when it creates a risk of promoting real harms.
France created its law expressly to bring the country into line with the requirements of the International Convention on the Elimination of All Forms of Racial Discrimination. It now has more than a forty-year track record of enforcing it. While some skeptics may fear that courts would go too far in restricting speech, and others may wonder whether any convictions would emerge at all, the truth lies in the middle. The highest French criminal court reviewed 104 cases dealing with racist speech between 1972 and 2012 and upheld restrictions against such speech in 58 percent of the cases. Although it is easy to disagree with some of their decisions, on the whole, judges have proven capable of distinguishing between speech that is offensive but protected, and that which is destructive and forbidden.
Creating a hate speech law in Japan would not solve the entrenched problems of racism and nationalism that motivate a minority of Japan’s citizens. However, enacting hate speech legislation would send a signal to racists, to victims of racism, the nation as a whole, and the international community, that Japan recognizes the importance of freedom, but also tries to limit the suffering that freedom can cause when it is reified as an unquestioned value.
There is more to being a liberal democracy than simply standing up for free speech. As European examples show, a carefully constructed and judiciously enforced hate speech law can be a tool for protecting the vulnerable, for ensuring a greater measure of social harmony, and for establishing a sustainable balance between upholding freedom and fighting entrenched racism. Japan waited thirty years to accede to the UN Convention against Racism. Let us hope it does not wait thirty more to pass its first hate speech law.
About the Author
Erik Bleich is professor of Political Science at Middlebury College in Vermont. He is the author of numerous publications on hate speech, including The Freedom to Be Racist? How the United States and Europe Struggle to Preserve Freedom and Combat Racism, by Oxford University Press.