Last month, Debito Arudou surprised his critics. He didn’t write another Japan Times column “bashing” Japan over its human rights record with foreign nationals — as those critics would put it. Instead, he wrote about how “America needs to get on the same page as Japan” and “outlaw hate speech.”

The background for Arudou’s argument is the seemingly unstoppable rise of white supremacist, neo-Nazi groups in the United States on President Donald Trump’s watch. Capitalizing on Trump’s appeal to populist resentments among American voters, their frightening rhetoric spilled over into homicidal violence in Charlottesville, Virginia, last month.

In this febrile atmosphere, Arudou believes, there is no guarantee that freedom of speech will maintain a marketplace of ideas in which enlightenment wins out over hate. Right now, the opposite is happening. And this, the argument goes, is why America should follow Japan and Western European countries by passing laws outlawing hate speech.

In the weeks since Arudou wrote his article, even more frightful events in South-east Asia seem to bear out his argument. In Myanmar’s newfound marketplace of ideas, Buddhist nationalist monks have been broadcasting anti-Muslim propaganda to incite sectarian violence against the Rohingya minority.

Today, few within Myanmar will defend this minority — even when, this month, the nation’s armed forces reacted to a poorly armed Rohingya insurgency with indiscriminate killings, arson and ethnic cleansing. Facebook memes of Rohingya “Bengali terrorists” now appear implicated in a campaign of terror and massacre.

However, Arudou is mistaken. Japan’s hate speech law does not outlaw hate speech, and there are too many risks inherent in outlawing it. Yes, ethno-nationalist intolerance is globalizing and is going multicultural, as tweed-suited bigots in America sing the same hymns to racial purity as their maroon-robed brethren in Myanmar. Still, there might be another way for hate speech law to work, without criminalizing the haters, and Japan’s hate speech law could show how.

Law is a call to local action

But first, let’s deal with the claim that Japan has outlawed hate speech. The United Kingdom’s criminal hate speech laws, contained in its Public Order and Racial and Religious Hatred acts, provide a useful contrast. These laws set criminal penalties, including fines and imprisonment, for anyone convicted of abusive, threatening and insulting words and behavior intended to stir up hatred on the grounds of religion, race or sexual orientation, or which otherwise cause alarm, harassment or distress.

On a common sense understanding, these acts outlaw hate speech, and people have been convicted under them.

Japan’s hate speech legislation has no such penalties. Passed in 2016 following domestic and international protests over a wave of hate-filled demonstrations and online abuse directed against Japan’s ethnic Korean (Zainichi) minority by ultra-right-wing organizations, this law calls for “efforts to eliminate unfair discriminatory speech and behavior … against persons originating from outside Japan” and their descendants.

Yet these efforts extend to no more than vaguely worded “measures” to eliminate hate speech, including coordination between local and national governments to conduct public awareness and education campaigns to eliminate it. Japan’s hate speech law is chiefly an exercise in moral exhortation.

There are good reasons for this: Article 21 of Japan’s Constitution unambiguously protects freedom of speech. In Diet deliberations leading up to the passage of the hate speech law, both major parties recognized the powerful obstacles this article puts in the way of criminalizing hate speech.

Legal scholars such as Masato Ichikawa also weighed in, noting that “laws punishing the dissemination of discriminatory ideas, or the denial of people’s history of discrimination, could quite possibly not be approved under Japan’s Constitution.”

Dangers of criminalization

However, many Japanese progressives still want criminal remedies to be incorporated into this law, although there are plenty of criticisms of criminal hate speech law for them to consider.

One is that extremists will deliberately troll it, then use their criminal convictions to generate publicity for themselves with their politically alienated constituencies. Some provocateurs have used Holocaust denial and anti-Semitic slurs to achieve that goal in France, and in the last years of the Weimar Republic, Nazi propagandists harvested votes by trumpeting their convictions for anti-Jewish religious libel. Another, blunter criticism is that criminal hate speech laws have not stemmed the recent growth in anti-Semitic and anti-Islamic hate crimes and xenophobic political parties in France and Germany.

There is one more criticism that should be of concern in Japan. Definitions of hate speech are often vague enough to be relativized on behalf of different “grievance constituencies” with their competing claims to victimhood. Take the idea that hate speech is insulting, harassing, threatening speech intended to stir up hate for people on the basis of race, sexuality or religion. Well, aren’t the Japanese a race too, who can be insulted, harassed and threatened, by speech intended to stir up hatred against them?

Google in Japanese the expression “anti-Japanese hate speech” and you will find websites retooling hate-speech definitions in just that manner, usually against South Korean nationalists. When Makoto Sakurai, former leader of the anti-Korean rightist group Zaitokukai, ran in Tokyo’s gubernatorial election last year, one of his pledges was to pass legislation banning the “harassment of Japanese based on fabricated history,” which he also referred to as “anti-Japanese hate speech.”

Of course, these reactionary cranks can say what they like, but surely it won’t change the focus of hate speech law upon protecting vulnerable minorities. However, with high-stakes criminal penalties in the picture, that focus can blur.

Judicially speaking, it becomes important to enforce hate speech laws “impartially” without bias to particular parties, so that claims about hate speech targeting relatively powerful groups or institutions also deserve to be investigated and heard in court. Such impartiality can be politically manipulated.

In Britain in 1994, two gay activists were arrested and charged under the Public Order Act for a protest against homophobia in Iran, in which they carried placards comparing fundamentalist Islam to Nazism (although the charges were dismissed in court). In 2010, protesters who shouted abusive antiwar slogans at a parade of British soldiers were convicted under the Public Order Act. In France there have been repeated convictions of left-wing activists advocating boycotts against Israel, for “inciting hate or discrimination.”

If Japan’s hate speech law incorporated criminal penalties, I have no doubt there would be considerable pressure to extend its definition of hate speech to “anti-Japanese” expressions, or to angry, raucous speech by anti-government demonstrators outside the Diet. In fact, during a Diet project team’s deliberations in 2014 on the creation of hate speech legislation, conservative legislator Sanae Takaichi suggested that the latter speech could be restricted.

Three cheers for the status quo

But as things stand, isn’t this legislation rather ineffectual? Perhaps not. First of all, in calling on local and national governments to take measures to eliminate hate speech, it is also sending a message that they themselves will be held to high standards of conduct toward minorities. Second, it may further incentivize a trend in the courts to enforce existing criminal libel and intimidation laws more strictly against particularly vile or threatening anti-minority activities, online and off.

Third, it sends a message of intolerance for discrimination, which could benefit the very civil-society activism that Arudou has championed. Perhaps that message will help encourage citizens to more actively oppose racism, organizing counterprotests against anti-Korean demonstrations, creating or joining NPOs that protect immigrant and foreign residents’ rights, and helping foreign friends confronted with anti-foreign tenant clauses in rental agreements.

Which is to say that this law keeps the onus on civil-society discussion and activism to combat racist, bigoted speech, with support from government, rather than giving government the potentially dangerous power to decide what it is and who will be punished for it. For people like me who are sympathetic to robust free speech protections, this is a more tolerable form of hate speech law, and one that might possibly work.

Shaun O’Dwyer is an associate professor in the Faculty of Languages and Cultures at Kyushu University. Foreign Agenda is a forum for opinion on issues related to life in Japan.
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