Freedom of expression takes a hit

The Supreme Court on Nov. 30 upheld a high court ruling that had found a 62-year-old Buddhist monk “guilty of trespassing” for entering a Tokyo condominium to distribute political fliers for the Japan Communist Party in December 2004. The ruling fined him ¥50,000.

The Supreme Court’s Second Petit Bench attached importance to the fact that notices in the entrance hall of the building prohibited the insertion of leaflets and pamphlets into door mailboxes. The court decided that the monk, Mr. Yosei Arakawa, infringed on the residents’ peace and privacy.

Although Mr. Arakawa was inside the building for about seven or eight minutes, he did not do anything considered likely to cause fear among residents. In the past, he had distributed leaflets in the same building without protests or warnings from the residents’ association.

Freedom of expression, guaranteed by the Constitution, is a pillar of democracy. This ruling could intimidate people engaged in various civic and political activities. It may encourage the police and public prosecutors to threaten citizens with arrest on charges of trespassing and other violations for distributing political or other leaflets that express opinions. The Supreme Court has set a bad precedent.

On April 11, 2008, the same bench found three antiwar activists guilty of trespassing when they entered a housing compound of the Self-Defense Forces in Tachikawa, Tokyo, in January and February 2004 to distribute leaflets urging SDF personnel and their family members to oppose the deployment of SDF units to Iraq. The three were fined a total of ¥500,000. In that case, the defendants had repeatedly distributed leaflets even after the housing compound manager filed complaints with the police each time they entered the compound.

On the afternoon of Dec. 23, 2004, Mr. Arakawa, entered a seven-story condominium building in Katsushika Ward, Tokyo, and dropped political fliers — describing JCP activities in the Tokyo metropolitan and Katsushika ward assemblies — into door mailboxes of residents on the third to seventh floors.

According to the Tokyo Shimbun, Mr. Arakawa left one corridor when a resident got angry. Wishing to avoid future trouble, he came back and asked the resident, “Please tell me your room number so I won’t leave leaflets at your door in the future.” The resident got angry again and called the police. Mr. Arakawa waited on the first floor for the police to come as he was told to do, and was arrested. He was subsequently detained for 23 days despite the minor nature of the charge.

Regrettably, the No. 2 Petit Bench of the Supreme Court did not determine whether Mr. Arakawa deserved arrest and such a long detention. His arrest, detention and indictment leave the impression that investigative authorities put him through this ordeal because he supported the JCP.

Both the Tokyo District Court and the Tokyo High Court had taken the position that although the right to distribute political leaflets is guaranteed by Article 21 of the Constitution, it does not necessarily mean that the right should be guaranteed absolutely and without restriction.

Still, the district court acquitted Mr. Arakawa after pointing out that he did not enter the building to commit a crime or conduct other harmful activities and that the leaflets distributed by him were unlikely to have given residents any cause to fear that their peace and privacy were about to be violated. It concluded that even if he entered the building against the will of the residents’ association, his action cannot necessarily be regarded as “entry without good reason.” The lower court also pointed out that a social consensus had not been established on whether someone entering a corridor or staircase in the daytime for a short time should be punished.

By contrast, the high court found the monk guilty, although it admitted that his purpose for entering the building was not improper. It stressed that he entered the building against the will of the residents who had prohibited entry by outsiders.

All four judges of the top court’s Second Petit Bench supported the high court ruling, stating that entering the building against the will of the residents’ association, even to exercise freedom of expression, infringed on the residents’ peace and privacy. The ruling said the monk’s entry into the corridors constituted “damage” in a legal sense and that the damage was not necessarily light. Yet, in view of the whole situation, one wonders how Mr. Yosei’s action could have been construed as damage deserving of the indictment.

Presiding Justice Isao Imai said the trial was not about whether constitutional “expression itself” was being punished. The petit bench seems to believe that “expression” can be separated from the “means of expression.” It should recognize that expression can be suppressed by punishing people for their chosen means of expression.