The Hiroshima Law Journal Volume 41 Issue 2
2017-10-27 発行

ヘイト・スピーチに対する非強制的施策に関する原理的考察(三・完) : Corey Brettschneider の価値民主主義(Value Democracy)論と民主的説得(Democratic Persuasion)論の考察を中心として

The Fundamental Inquiry of Non-Coercive Measures on Hate Speech(3): Drawing on Corey Brettschneider’s Value Democracy and Democratic Persuasion
Yamamura, Toshihide
The legal situation regarding hate speech regulation in Japan is currently at a turning point, owing to the introduction of a law and ordinance to restrict hate speech, the first of its kind in Japan. The legislation assumes the “cautious approach of regulation”, deemed a majority theory in the scholarly debate on hate speech regulation. Following such a cautious approach, legal regulation of hate speech (in particular, criminal sanctions) has limited effectiveness. It has been suggested that in dealing with hate speech in Japan, in addition to the regulation of expression, it would be of value to inquire into various measures including education. Furthermore, this awareness of the issue is shared by others[KS1]. I consider that such a statement assumes non-regulative or non-legal measures (in particular, education and enlightenment). However, there is no evidence of a fundamental inquiry of such measures on hate speech. Therefore, I aim to investigate non-regulative or non-legal measures on hate speech. I focus on Corey Brettschneider’s argument for “Value Democracy” and “Democratic Persuasion”, drawing on the doctrine of government speech. To begin with, Brettschneider distinguishes between a state’s coercive capacity and its expressive capacity. He then insists that “the state should simultaneously protect hateful viewpoints in its coercive capacity and criticize them in its expressive capacity”. A theoretical background of this insistence is “Value Democracy,” which “bases democracy on the affirmative values of free and equal citizenship.” Under “Value Democracy,” the state’s measures of intervention by its expressive capacity fall under “Democratic Persuasion,” defined as “the process of defending the values of free and equal citizenship.” There is considerable criticism and discussion of Brettschneider’s argument; therefore, introducing and commenting further on his argument, I aim to promote discussion on hate speech regulation in Japan.