Monday, April 28, 2008

Freedom of Expression and the Supreme Court

"The Supreme Court's Second Petit Bench on April 11 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. Because the ruling will intimidate people planning to distribute leaflets, an important means of expressing one's opinion, it could restrict the freedoms of speech and expression, cornerstones of democratic society.

"The three entered the partially fenced eight-building compound despite the presence of signs warning against entering without permission and placed the leaflets in the mailboxes of residential units. At that time, as now, public opinion was divided over the government's decision in December 2003 to dispatch SDF troops to Iraq. In January 2004, SDF members began arriving in Iraq. The investigative authorities' actions against the trio was unusual. After their arrest in February 2004, they were detained for 75 days. Amnesty International declared the three to be "prisoners of conscience."

"Public prosecutors demanded six months' imprisonment for them for trespassing. In December 2004, the Hachioji branch of the Tokyo District Court acquitted the trio, saying that although their actions constituted trespass, the degree of infringement on the residents' privacy was small and their violation was not grave enough to merit punishment. The branch also pointed out that the distribution of the leaflets falls into the category of political expression, which is guaranteed by the Constitution.

"But in December 2005, the Tokyo High Court found the trio guilty of trespassing and fined two of them ¥200,000 each and another ¥100,000. It said that the trio had no right to enter the compound and ignore the will of the compound's manager. It also said that the trio repeatedly distributed leaflets despite protests by residents, and therefore the damage suffered by the residents was not light.

"In a ruling supported by all three justices present, the Supreme Court's Second Petit Bench accepted that freedom of expression must be respected as an especially important right in a democratic society and that the defendants' acts of distributing political leaflets constituted exercise of the freedom of expression. But referring to Article 21, Section 1 of the Constitution, which says, "Freedom of assembly and association as well as speech, press and all other forms of expression are guaranteed," the petit bench said that it does not give an absolute and unlimited guarantee to the freedom of expression and instead allows necessary and rational restrictions on it for the sake of public welfare.

"The petit bench said that entering the housing compound against the will of its manager infringes on the manager's right to manage the compound. It noted that since the compound had signs prohibiting entrance by non-residents and the manager submitted a damage report to the police every time the defendants entered the compound, it could not be said that the defendants' infringement on the legal interests of the residents was extremely light. The Supreme Court said that a means of expressing one's thought cannot be allowed if it unjustly infringes on others' rights. Thus it upheld the high court's guilty sentences.

"The top court declared that the issue was not the constitutionality of punishing defendants in connection with what they express, but rather how they express it. What the court should realize, however, is that if it places stringent restrictions on methods of expression, the end result will be the suppression of expression itself. The justices should realize that residents who retrieve leaflets from their mailboxes do not have to meet the people who deliver them, and that if they do not like the leaflets they can simply throw them away.

"The ruling also pointed out that the compound is not a place for ordinary citizens to enter freely and said that the defendants infringed on the peace of the manager and residents. But it did not say what concrete damage was suffered by the manager and residents as a result of the defendants' actions.

"Although the ruling refers to the damage reports that the manager submitted to the police, it ignores the fact that the police assisted in preparing the reports. In fact, the police played an active role from the start. About two months before the arrest of the three, they reportedly asked the SDF to cooperate so that they could arrest those who delivered the leaflets on the spot. It is reported that the police later asked the SDF to submit damage reports and identify those who delivered the leaflets. According to the defendants, non-residents routinely enter the compound to deliver commercial leaflets, and the police have never taken action against them. It is therefore not unreasonable to believe that the police selectively targeted the activists. The Supreme Court regrettably chose to ignore this."

By Editorial (4/27/2008), The Japan Times, Link to article (last visited 4/28/2008)

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