Among the cases at which the author looks in this chapter is one in which a district court issued an injunction against a hate demonstration attacking Koreans planned for an area in which many Koreans live. The decision referred to the right of Korean residents to live in their houses in peace. It referred to the Hate Speech Elimination Act and did not recognize the hate demonstration as expression to be protected constitutionally. In this way, the court privileged the personal right over the constitutional freedom, regarding the ‘peace’ to which these individuals were entitled as including a freedom from mental harm. Moreover, the court held that the feelings and beliefs harboured by those with roots outside of Japan toward their ethnicity are deeply rooted in individual dignity. This enabled it to decide that the hate demonstration’s infringement of the right to dignity was serious. The author criticizes this reasoning and asks whether the court’s use of the Act does not go too far. He proposes instead that the most relevant detail of the case was the fact that the demonstration was planned for an area in which many Koreans are resident, meaning that the utterance of hate speech there would arouse a very real sense of fear and infringe their concrete rights.

This chapter offers an outline of the Hate Speech Elimination Act and analyses some of its issues. When the Japanese Diet enacted the Hate Speech Elimination Act in 2016, it was the first law to directly tackle hate speech. The law is unusual because while it clearly declares hate speech to be impermissible, it imposes no penalties upon it. On the one hand, one might argue that the Act properly balances equality and freedom of speech; on the other hand, one might question its effect in combating hate speech. It should be emphasized that the Act requests the national and local governments to implement educational activities to eliminate unfair discriminatory speech and behaviour, as well as to raise awareness among the general public about the issue. Such government activities can be interpreted as a type of ‘government speech’, which can be used to discourage and deter hate speech while avoiding constitutional problems. As such, the Japanese Act may present a modest model that strikes an appropriate balance between freedom of speech and anti-racism.