Supreme court support for ban on small political rally an alarm bell for freedom of expression
In its more than 70-year history, Japan’s supreme court has never ruled that the police or any other agency of government has violated the constitutionally protected right to free speech. In a case decided recently, the court had the opportunity to break with precedent but once again sided with the government.
The case concerned a request to hold a rally at a public plaza in the city of Kanazawa. The conflict arose when the local citizens group, the Ishikawa Society to Protect the Constitution (Ishikawa Kenpō o Mamoru Kai), was denied permission in 2017 to celebrate the 70th anniversary of Japan’s democratic constitution. In a February 21 judgment, the supreme court upheld the denial by a vote of 4-1, with Justice Katsuya Uga casting the dissenting vote 1.
Majority v dissenter
Japanese law ordinarily requires permits for marches on public roads or large gatherings at parks or other public property 2. Issued by the police or other local government offices, the permits specify times, locations and the maximum size of gatherings. In the Kanazawa case, the requesters sought permission for a 300-person rally at a large open space located directly in front of city hall. After the city denied the permit, the group filed a lawsuit.
In deciding whether the city had acted lawfully, the task before the court was two-fold. First, it had to determine whether Kanazawa had correctly applied relevant laws governing such permits. Next, it was required to review the appellants’ claim under Article 21 of the constitution, which protects freedom of assembly, among other free speech rights.
The city cited two separate grounds for denying the permit. It declared that the requested location for the rally, an open plaza in front of the city hall building, was an integral part of city hall and therefore subject to strict restrictions governing the use of the building. In addition, it said that granting the permit would indicate the city’s implicit support for political opinions expressed at the rally and would thereby damage its reputation for political neutrality. The supreme court majority accepted these grounds in upholding the city’s decision.
Uga, who had been appointed to the court in 2019 after a distinguished career as a University of Tokyo law professor, attacked the majority’s position on several fronts. He faulted the majority’s determination that the open space or plaza is covered by city hall rules. The space is not literally a part of the city hall building; it is entirely outdoors and extends for about 60 meters from north to south and 40 meters from east to west. Moreover, it is not enclosed by a fence and fronts public roads on two sides.
Uga argued that the site was an open public space and regulations that apply to strictly control access to government buildings were irrelevant. Instead, he categorized the site as other “public property” (oyake no shisetsu) as defined by Japan’s administrative law. This distinction was vital to the outcome. As Uga explained, the law mandates that such public property be made available for residents’ use unless a local government can show “just cause” (seitō na riyū) for denial. In a 1995 judgment involving other public property, the supreme court defined “just cause” as the need to take action to avoid “threats to people’s lives or physical injury or assets or public order”. 3 There was no such threat in the Kanazawa case.
Regarding the city’s fear of damage to its reputation for impartiality, you could almost see Uga chuckle as he wrote that no one thinks the mayor and members of the city council are impartial in their political beliefs. They are elected officials who stoutly proclaim those beliefs and favored programs during each election campaign. If they truly wanted to act impartially, they would allow access to speakers of every stripe.
In addition to its fear of reputational damage, the city claimed that the rally might disrupt work at city hall. Uga also swatted this away. The proposed event was to be held for 30 minutes on a Sunday afternoon, when city hall would be closed and the staff would be absent. Moreover, the city had allowed others to use the site for public events in the past and had not received any claims of disruption.
What about the constitution?
The court majority used a well-worn tool to dismiss the citizen group’s claim to protection under article 21 of the constitution, which broadly protects free expression, including freedom of assembly. The majority cited an alternative constitutional provision, article 13, which requires that individual rights be limited in order to protect “public welfare”. The supreme court has never defined “public welfare,” but it has repeatedly cited the term in striking down claims to individual rights. In this case, the majority ruled that blocking the rally in order to avoid harm to the city’s reputation and potential Sunday work disruption would protect public welfare and was therefore in line with the constitutional order. In conclusion, the court held that the city’s actions were “necessary and reasonable” and did not violate the constitution.
According to Uga, the majority had been viewing the horse from the wrong end. For him, the place to start was not the building regulations adopted by one city on the Japan Sea coast, but the constitution – Japan’s supreme law. There is no doubt that public gatherings like the one planned in Kanazawa come within the constitutional guarantee of freedom of assembly. The critical question is what constitutes sufficient cause to empower a government entity like Kanazawa to restrict those rights. As explained earlier, Uga easily dismissed the paltry justifications put forth by the city and the court majority. Then he went further.
Uga suggested that the city was not applying its rule in an even-handed manner. Maybe it had selected its target. The Kanazawa mayor at the time was Yukiyoshi Yamano, a rightwing politician known for endorsing nationalistic textbooks for public schools. 4 If the city’s denial of a political rally based on some abstract fear was upheld, mayors and other local officials would be empowered to approve assemblies by supporters and block those of their opponents. All constitutional scholars agree that such “viewpoint discrimination” must only be allowed in the most unusual circumstances. Otherwise, the free speech guarantee would be a sham.
For most foreign observers, the goal of the rally – to celebrate the constitution – might appear uncontroversial, but in Japan it is a source of deep political conflict, with nationalist forces repeatedly demanding that it be thoroughly rewritten. The mayor’s motivation for opposing the rally seems clear. But what about the four supreme court justices who upheld the city’s action? What motivated them to rule against the demonstrators? The answer may lie in the past.
Fear of protest
The Kanazawa judgment limited access to an open public space in which demonstrators can gather and speak out. Such a restriction fits well with supreme court precedent. Japanese scholars often point to a 1960 judgment in which the full 15-member supreme court overturned a series of lower court judgments in order to uphold the constitutionality of “public safety” ordinances employed to limit political demonstrations and other gatherings. In chilling language, the court declared:
Even when the assembled group is peaceable and orderly, there are cases in which it may become carried away by excitement or anger, and in extreme cases may turn violent, resorting to force and running roughshod over law and order, even beyond the abilities of their leaders to police or control, a danger which is clear in light of theories of mob psychology and real-world experience.Supreme Court judgment of July 20, 1960 (Grand Bench), 14 Keishū 9, 1243. (English translation from Kapur, Crossroads, Chapter 6.)
In other words, for the court every public assembly carries the potential to explode into violence. The July 1960 judgment was issued in the immediate aftermath of the massive demonstrations against revision of the U.S.-Japan Security Treaty. 5 Apparently acting in fear of such protests, the court followed an expedited schedule in order to quickly deliver a powerful endorsement of tight control over public gatherings.
The 1960 judgment has cast a long shadow. Today local authorities enjoy nearly unbridled discretion to fix the rules that govern marches and public rallies. We can see the effect in Tokyo when lines of marchers, who sometimes appear to be outnumbered by the police, are squeezed into a single lane of a busy highway and required to halt at every light.
That long shadow reached a supreme court panel in February, when four justices decided that Kanazawa rules concerning use of the city hall building extended to a large open plaza – an ideal venue for people to enjoy “freedom of assembly”. 6
Lawrence Repeta, a former professor of law at Meiji University, is author of Japan’s Prisoners of Conscience (Routledge, 2023).
1 Japan’s supreme court is composed of 15 judges. The case was decided by the court’s Third Petty Bench, one of three separate benches of five judges each that handle the vast majority of cases. The text of the court’s judgment is at https://www.courts.go.jp/app/hanrei_jp/detail2?id=91799. News reports include https://www3.nhk.or.jp/news/html/20230221/k10013987251000.html and https://digital.asahi.com/articles/ASR2P6GZ4R2PUTIL00S.html (the Asahi report includes a photo of the site.) Justice Uga has also dissented in other judgments that raise fundamental rights issues. See Chiako Fukushima, “Jurisprudence of Justice Katsuya Uga of the Supreme Court of Japan,” May 23, 2022, https://manoa.hawaii.edu/aplpj/2022/05/23/jurisprudence-of-justice-katsuya-uga-of-the-supreme-court-of-japan-by-chiako-fukushima/.
2 Such permits are typically regulated by local “public safety” ordinances (“kōan jōrei”). When public roads are involved, the national Road Law comes into play.
3 Supreme Court judgment of March 7, 1995 (3rd Petty Bench), 49 Minshū 3, 687.
4 See Reiko Koide, “Critical New Stage in Japan’s Textbook Controversy,” https://apjjf.org/2014/12/13/Koide-Reiko/4101/article.html for background concerning the Ikuho textbooks.
5 See Nick Kapur’s deeply engrossing study of the Anpo era for details on the mass demonstrations and the Supreme Court’s response. Japan at the Crossroads: Conflict and Compromise after Anpo (Cambridge, Mass.: Harvard University Press, 2018).
6 The Kanazawa judgment has been sharply criticized by many Japanese scholars. For a thorough treatment, see Touru Mouri, “Why is the freedom to hold a political rally at a public square important?” (“Hiroba” de seijiteki shūkai wo kaisai suru jiyū ha naze daiji na no ka) Sekai, June 2023, 118-128.