Tokyo, Japan - A worrying rise in xenophobic nastiness chiefly targeting Korean residents in Japan has led to increased pressure on the government to take action and prohibit hate speech.  

Animosity between the two peoples goes back centuries, and in the wake of several ongoing political and territorial disputes Japan has with both North and South Korea, the number of street protests and demonstrations held by small jingoist groups has been steadily rising.

Following a series of hate rallies in Tokyo under names such as "Drive Out the Lawless Koreans," in which chants like "Eradicate the Koreans," and "Massacre the Koreans" were used, the city's Governor Yoichi Masuzoe met with Prime Minister Shinzo Abe last summer to voice his concern and ask for help in dealing with hate speech through legislative means.

After the meeting, Abe formed a study group to consider the matter.  

While outlawing hate speech may be well meaning, some observers point out that attempting to ban vitriolic speech can lead to unintended consequences that could end up harming the very people it's meant to protect.

"Allowing completely free speech helps a society prevent violence," prominent US civil liberties lawyer Harvey Silverglate told Al Jazeera.

"For one thing, people who are not allowed to speak freely and vent their feeling are more likely to turn to violence. For another, allowing free speech enables us to know who the haters among us are, and on whom we should not turn our backs."

Hatred and the haters

Roughly 500,000 ethnic Koreans are living in Japan today. Known as Zainichi - "residing in Japan" - the majority are descendants of Koreans who came to Japan after the country was annexed by Imperialist Japan in 1910, or who were forced to work here during WWII and stayed after the war ended.

Many Koreans assimilated and took Japanese citizenship, but the Zainichi chose to retain their ethnic identity and have established schools in Japan to teach the Korean language and culture to their children. Some of these schools maintain affiliations with North Korea, the others with South Korea.

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One rightist group called Zaitokukai: short for Zainichi Tokken o Yurusanai Shimin no Kai - Citizens against the Special Privileges of the Zainichi - has made ethnic Koreans a focus of its vitriol.

It frequently rails against special considerations - matters such as residence status - that the Zainichi receive compared to other foreign residents.

It doesn't help that in 2002, North Korea admitted to abducting a number of Japanese citizens in the 1970s and '80s to teach spies the Japanese language and customs. In addition, until 2013, the pro-Pyongyang schools used textbooks containing certain sentences supporting North Korean propaganda and hung photos of the past and present North Korean leaders in the classrooms, a practise that continues in some high schools today.

Zaitoku targeted these institutes and held noisy and abusive demonstrations outside the schools using loud speakers to make racial epithets, which frightened the younger children trying to study. 

Court ban

Zaitokukai came to public prominence when the Kyoto District Court banned it from demonstrating outside the Kyoto No 1 Korean Elementary School, and ordered it to pay 12.6 million yen ($106,000) in damages. The decision was appealed by Zaitokukai, but the Kyoto decision was upheld first by the Osaka High Court and then last December by Japan's Supreme Court.

"We feel this is a groundbreaking ruling in Japanese legal history," said Shiki Tomimasu, head council representing the school's operator who brought the suit against Zaitokukai.

"It represents a departure from past political attitudes and government apathy and intentional non-action regarding the hardships of ethnic Koreans."

Tomimasu delivered his remarks to the foreign press in Tokyo in February and went on to say that hate speech targeting Korean schools is by no means a recent phenomenon. The Japanese Bar Association, he said, has noted many incidents of harassment over the years, but these have generally gone unreported in the media.

Speaking alongside Zaitokukai was Sangyun Kim, a professor of law at Ryukoku University near Kyoto and a parent of a student who attended the Kyoto school.

"The fact that they [Zaitokukai] staged their demonstrations in the middle of the day without any reservations whatsoever, when students were studying, showed that they were basically trying to negate or deny not only the existence of the Korean school itself, but also of the children studying there," he said.

What it might reduce is outward displays of bigotry, meaning that societies banning such outward displays are hampered in their ability to detect and deal with true hatred.

Harvey Silverglate, US civil liberties lawyer

Kim said the racist demonstrations are an indication that a systematic attempt to exclude ethnic Koreans in Japanese society "is taking root in Japan", pointing to the central government's decision in 2013 to exclude Korean high schools from a tuition fee waiver programme.

The Japanese government, in justifying its decision, cited the lack of progress in the long-standing talks with North Korea to bring back remaining Japanese abductees.

For and against

Given these events, the UN Committee on the Elimination of Racial Discrimination called on the Japanese government last August to, "firmly address manifestations of hate and racism", "take appropriate steps to combat hate speech in [the] media including the internet", and "investigate and … prosecute private individuals as well as organisations responsible for such acts". 

But Silverglate argued there is no evidence that banning hate speech reduces bigotry.

"What it might reduce is outward displays of bigotry, meaning that societies banning such outward displays are hampered in their ability to detect and deal with true hatred," said Silverglate.

"Shutting up a person does not reduce hatred. It hides it."

Even attempting to define what constitutes hate speech is problematic and can lead to harmful outcomes.

"The definition will always be either too narrow or too broad," Eric Heinze, professor of law and humanities at Queen Mary University of London, told Al Jazeera.

"When it's too narrow, some vulnerable groups end up excluded [from the definition], which means the ban itself becomes an agent of discrimination. When it's too broad, it sweeps in far too much speech, hampering debate on essential issues, and creating greater reliance on the ban than on public reason."

As lawyer Keiji Kanegae has noted in opining against banning hate speech, on the Japanese law consultation website bengo4.com and translated here: "Expression … promoting discrimination and prejudice should be dealt with through current laws against defamation and libel, or through civil suits.

"I oppose regulation of hate speech, which would have a chilling effect on acts of expression and would carry a high risk of distorting our democracy."

Source: Al Jazeera