(This case involves the Osaka City Ordinance on Dealing with Hate Speech (Osaka City Ordinance No. 1 of 2016, where two residents of the city questioned the enforcement of the ordinance for violating the Constitution.)
The freedom of expression guaranteed by Article 21, paragraph (1) of the Constitution is a fundamental human right that is essential for the political process of constitutional democracy and is an important right that provides the basis for a democratic society. However, it is not guaranteed without limit, but it should be said that the freedom of expression is sometimes restricted by public welfare to a reasonable, necessary, and indispensable extent. Then, in this case, it is reasonable to determine whether restriction on the freedom of expression under the Provisions is approved as restriction to the aforementioned extent by weighing the degree of necessity of restriction for the purpose of the Provisions, the content and nature of the freedom restricted, and the form and degree, etc. of specific restriction imposed on the freedom (see 1977 (O) 927, the judgment of the Grand Bench of the Supreme Court of June 22, 1983, Minshu Vol. 37, No. 5, at 793, etc.).
The Provisions can be considered to constrain a certain range of the freedom of expression through measures to prevent spread, etc. The purpose thereof is considered to exist in the promotion of deterrence of hate speech under the Ordinance in light of the context, etc. thereof. Then, needless to say, there is a significant need to deter expression activities that fall under hate speech under the Ordinance which can cause civil or criminal liability, such as expression activities targeting specific individuals. In addition, in light of what was instructed in 1.(2) above, expression activities that cannot be considered to immediately cause the aforementioned liability, like those targeting an unspecified and large number of persons, such as a certain ethnic group as a whole, are also publicly conducted for unjust purposes, such as exclusion of a specific person, etc. from society on the grounds of his/her specific attributes pertaining to a certain race or ethnic group. In terms of their content or form, such expression activities can be considered to especially induce or foment a sense of discrimination, hatred, etc. against persons who belong to a certain race or ethnic group or agitate criminal acts, through actions such as causing harm to the lives, bodies, etc. of those persons. Therefore, it should be said that there is still a significant need to deter such expression activities. In addition, it can be said that the purpose of the Provisions is reasonable and justifiable, taking into account the fact that propaganda activities, etc. accompanied by extreme and highly malicious discriminatory behavior as mentioned above seem to have been frequently conducted in the City.
Moreover, the content and nature of expression activities that are restricted pursuant to the Provisions are limited to those accompanied by extreme and highly malicious discriminatory behavior as mentioned above. In addition, in terms of the form and degree of the restriction, such expression activities only become subject to measures to prevent spread, etc. taken by the city mayor after the fact. Then, regarding measures to prevent spread, it is considered that the city mayor may make a request for the removal of a signboard, posted matter, etc. and a request for the deletion of an expression on the internet, etc. However, there is no sanction against a person who does not accept such request, etc. Regarding the publication of recognition, etc., there is no enforceable means for identifying the name of a person who conducted relevant expression activities.
Therefore, it should be said that restriction on the freedom of expression under the Provisions is only to a reasonable, necessary, and inevitable extent. According to what was instructed above, out of the Provisions, Article 2, paragraph (1) of the Ordinance that provides for the definition of hate speech under the Ordinance and Article 5, paragraph (1) of the Ordinance that provides for the requirements for the city mayor to take measures to prevent spread, etc. are said to be provisions from which the standards for determining whether relevant expression activities are subject to the application of the Provisions in specific cases can be understood based on the comprehension of the general public having the ordinary capacity to make determinations. Therefore, the Provisions can neither be considered unclear nor be considered as an excessively extensive regulation.
Source: Minshu Vol. 76, No. 2, 2022.02.15, Judgments of the Supreme Court, www.courts.go.jp/app/hanrei_en/detail?id=1888.
