HLJ_42-1_214.pdf 842 KB
On the Development of Judicial Review under Freedom of Expression in Japan
It would be appropriate to apply a strict scrutiny test that takes into consideration the importance of freedom of expression and the theory of “double standards,” but the Supreme Court applied the strict scrutiny test without the above considerations. I have never judged the legislation regulating individual expression to be unconstitutional. Such legislation is criticized in constitutional academic circles as not truly adopting the “double standards” theory or the “importance of freedom of expression” theory. Therefore, in this paper, I point out the problems with earlier Japanese Supreme Court precedents in Chapter 1, and then in Chapter 2 we explain the method of the “balancing” theory and point out the problems with the Supreme Court decision. In the third chapter, an overview of the development of the theory of “balancing” after the declaration of monkey payment, and what kinds of examination criteria should be applied for judging the constitutionality of legislation regulating expression, with a particular focus on the method of “balancing” We will examine the possibilities of a standard based on recent cases.
Although the balancing used by the Supreme Court is not only simply balancing (ad hoc balancing), it cannot be said that the balancing sufficiently takes into consideration the “importance of freedom of expression.” In this paper, I tried to explore the possibility of using the balancing method as the examination criteria, but capturing balancing as the examination criteria is difficult at this stage. There is also a view that supports the judgment framework described in the supplementary opinion of the Judge from Chiba in the Supreme Court’s decision in the Horikoshi case, but the decision on whether to do so will wait for the accumulation of future judicial precedents by the Supreme Court.