the existence of the facts and there was good reason for his mistaken belief
on the basis of reliable information and grounds, even if he could not prove that
the statement was true. The court justified this interpretation on the ground that
“Article 230 - 2 of the Penal Code has been enacted to reconcile the personal security
of the honor of an individual with freedom of speech.”^38 At face value, this
explanation is unpersuasive since it raises the question why there was a need to
add another exception in addition to those already provided in the Penal Code.
This defamatory defense is justified in that the importance of free speech
for maintaining democracy is not readily discernible when reading the text of the
Constitution literally.
In theHoppo Journalcase,^39 the Supreme Court acknowledged the link between
freedom of speech and a functioning democracy:
In a democratic nation where sovereign power resides with the people,
the following is the foundation of its existence. That is, the people as
constituents of that nation may express any doctrine, advocacy of a
doctrine and the like as well as receive such information from each
other, and by taking whatever they believe rightful from among them of
their own free will, majority opinion is formed, and government
administration is determined through such a process. Therefore, the
freedom of expression, especially the freedom of expression relating to
public matters, must be respected as a particularly important consti-
tutional right in a democratic nation.^40
Essentially, the court supports the position that the freedom of expression of public
concern should have priority over the protection of personal honor by adding more
exceptions than we can glean from the text of the Penal Code. Thus, “the Supreme
Court did not declare any part of Article 230 of the Penal Code contrary to the
Japanese Constitution; instead, it simply rewrote the exceptions clause to make it
compatible with Article 21 ’s guarantee of freedom of speech.”^41
Thus, it is possible to appreciate the revisionist account of the court’s behavior.
Ronald J. Krotoszynski Jr suggested recently that “one could view the Supreme
Court’s practice of providing limiting constructions as a form of judicial activism,
rather than as the product of extreme judicial deference.”^42 Even if we could not
characterize the practice of the court as a form of judicial activism, it is at least
arguable that the conventional account of the court as an extremely deferential
court is quite misleading. The court has never completely abandoned its role as the
guardian of constitutional rights.
(^38) Ibid.,p. 977. (^3940) Minshu 872 (Sup. Ct. G.B., June 11 , 1986 ). (^40) Ibid.,p. 877.
(^41) Ronald J. Krotoszynski Jr, The First Amendment in Cross-cultural Perspective:
A Comparative Legal Analysis of the Freedom of Speech(New York: New York University
Press, 2006 ), p. 156.
(^42) Ibid.,p. 177.