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

Encountering the discourse that "pornography is an act of discrimination" was the starting point of my research. Back when I was a high school student, 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 generously guaranteed by the Constitution (Article 21), and it is a standard rule of constitutional law to apply strict scrutiny to the regulation of 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 expression regulation. This implies that what is worthy of constitutional protection is expressive conduct that possesses (or does not possess) certain qualities.

However, is this line of thinking consistent 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 regulating expressions critical of World War I. Due to this history, constitutional law has maintained 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 circulation of expression will be achieved (the marketplace of ideas).

In recent years, however, the limitations of this outlook have been pointed out. In the United States since the late 1980s, while expression regulations intended to provide relief for 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 view this as a problem, the reproduction of the existing power order is occurring by abstracting the power structures of real society and regarding the current marketplace of ideas as neutral. They argue that freedom of expression has now been transformed into a "weapon for 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.