Mai Sugaya: A Modern "Turn" in Freedom of Expression?

2022/02/11

My research began with an encounter with the discourse that "pornography is an act of discrimination." As a high school student at the time, I wondered what the basis was for calling pornography—which should be a form of expression—an "act."

As is well known, "freedom of expression" is extensively guaranteed by the Constitution (Article 21), and it is a standard principle in constitutional law to apply strict scrutiny to regulations on expression. At the same time, however, the Constitution also guarantees "equality under the law" and prohibits sexual discrimination (Article 14). In other words, from the perspective of constitutional law, the aforementioned statement can be read as an attempt to de-characterize pornography as "expression" by identifying it as an act of discrimination, thereby avoiding strict scrutiny of its regulation. This implies that what is worthy of constitutional protection is expressive conduct that possesses (or does not possess) certain qualities.

However, does this line of thinking not conflict with the traditional understanding of the legal doctrine of freedom of expression? Originally, this doctrine was established in the early 20th-century United States as a "shield for the powerless" amid disputes over the constitutionality of regulations on expression criticizing World War I. Due to this history, constitutional law has taken an extremely cautious stance toward government regulation of expression—particularly regulations focusing on the content of expression. The idea is that if government intervention is prevented, the free flow of expression will be achieved (the marketplace of ideas).

However, in recent years, the limitations of this view have been pointed out. Since the late 1980s in the United States, while regulations on expression intended to aid minorities—such as hate speech regulations—have been struck down as unconstitutional interventions by the government into the marketplace of ideas, there has been a trend toward protecting political contributions by large-scale capital as "expression." According to scholars who see this as a problem, by abstracting away the power structures of the real world and regarding the current marketplace of ideas as neutral, the existing power order is being reproduced. They argue that freedom of expression has now been transformed into a "weapon of the powerful."

Whether such a modern "turn" in freedom of expression is actually occurring requires verification in itself, but perhaps the time has come to re-examine the conditions for the establishment of the marketplace of ideas (neutrality, government intervention, and the distinction between "ideas" that should circulate and other acts). With this awareness of the issues, I intend to continue engaging with the words mentioned at the beginning.