Criminal penalties for insults set a bad precedent for freedom of expression

Stephen Givens is a Tokyo-based corporate lawyer.

The Diet’s enactment of harsher penalties for the crime of insult and the related arrest of a 22-year-old loner for an offensive Twitter post will test how far Japanese lawmakers intend to go to protect citizens to have their feelings hurt online.

In June, parliament increased the maximum prison term for public insults from one month to one year and the maximum fine from 10,000 yen to 300,000 yen ($2,200).

The impetus for the legislation was the May 2020 suicide of Hana Kimura, a professional wrestler and character from the semi-reality television series “Terrace House.” Kimura, emotionally fragile at first, took her own life after viewers attacked her on Twitter for being mean to her boyfriend on the show, even though she was just following the script.

Kimura’s suicide led to a public campaign by her mother and calls to “do something” about online harassment, which the Ministry of Justice and the Diet responded to by increasing the penalties under the article 231 of the Penal Code.

Just as the legislation was passing the Diet, police arrested and formally charged an anonymous unemployed man over a Twitter post that allegedly constitutes a criminal insult. The timing appears to be deliberate; an official warning shot that online bullying and harassment will now face serious penalties.

Hana Kimura at the Women’s Pro-Wrestling Stardom in Tokyo in March 2020: She took her own life after viewers attacked her on Twitter for being mean to her boyfriend on the show. © Getty Images

The gratuitous nastiness of the Twitter post in question makes one sincerely wish that she and others like her could somehow be filtered out of the internet’s information sewer. But as one analyzes the text more carefully, it becomes virtually indistinguishable from other hurtful language that would be dangerous to censor.

It’s a field, like pornography, where drawing lines ends in tears and frustration, and ultimately does more harm than good. Using the penal code to enforce good online manners will lead Japanese prosecutors and police into a swamp from which it will be difficult to emerge.

The Twitter post alleged to be a criminal slur requires a bit of explanation. In April 2019, a retired former government official lost control of the car he was driving in a busy area of ​​Tokyo, killing two people and injuring nine. Questions were then raised as to whether it was an accident or some form of road rage and whether the former official had received inappropriately lenient treatment.

The two people killed were the 31-year-old wife and three-year-old daughter of Takuya Matsunaga. After their deaths, Matsunaga created a Twitter account dedicated both to the memory of his wife and daughter and to a forum for issues related to the handling of the case and road safety in general.

One of the comments posted on Matsunaga’s account reads:

“Looks like you’re right after money and attention. What would your wife (31) and daughter (3) think in such a father’s paradise? It’s good for a man to have a new wife . Without a kid’s luggage, it should be fun changing trains. LOL.”

No doubt the post is ugly. But despite my efforts, I cannot distinguish it, or its constituent parts, from statements that clearly demand protection in a free society.

The first sentence questions Matsunaga’s motives. If those words are a crime, what about questions to Prince Harry and Megan Markle about whether they were paid for an interview with Oprah Winfrey? What is, in principle, the difference?

The second sentence is an old and common call to conscience. “What would your father, a decorated general, think of your insubordination?” Should we now be prohibited from using this trope at all levels?

The last two sentences of the tweet recommend Matsunaga to move on with his life, a fairly legitimate sentiment, delivered with an admittedly cruel stab. But when is knife twisting so cruel that it deserves criminal punishment? Should there be a special rule, a clergy benefit, for people whose family members have recently died?

A jurisprudence of “hurt feelings” will inevitably spill over into politics and political discourse. US court cases on free speech under the First Amendment make it clear that there is no right to be protected from “hurt feelings.”

Feelings are often the first victim of any political debate. Being labeled as “fascist”, “racist”, “sexist”, “white supremacist” or “feminazi” hurts. But banning these epithets, let alone inviting prosecutors and police to enter the fray with criminal penalties, will unacceptably hamper legitimate political discourse.

U.S. Supreme Court Justice Potter Stewart said that while he couldn’t define hard porn, “I know it when I see it.” If Japanese prosecutors and police decide to engage in online harassment and intimidation, one suspects Japanese courts will struggle to offer better than “I know it when I see it” when drawing the lines.

Japan has so far avoided the authoritarian temptation to criminalize disadvantaged political views. To its credit and unlike its European counterparts, Japan’s ‘hate speech’ law passed in 2016 stands out for being utterly toothless. It does not provide for any sanctions out of respect for freedom of expression. It is as it should be.

It’s too early to tell where the tougher criminal penalties and enforcement for online insults will end up. With any luck, the authorities will withdraw from the swamp before sinking up to their necks.

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