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Freedom of Information and the Evidentiary Use of Film in Japan: Law and Sociopolitics in an East Asian Democracy*

Published online by Cambridge University Press:  01 August 2014

Lawrence W. Beer
Lawrence W. Beer*
Affiliation:
University of Colorado
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Extract

This study sets forth the post-1945 development and present status of Japanese constitutional and procedural law on court-mass media relations, while analyzing aspects of the interaction between law and sociopolitical thought and behavior. A recent and dramatic illustration of the issues is provided by the Hakata Station Film Case: A Fukuoka court's subpoena (August 29, 1969) for newsfilm taken during a student-police encounter occasioned conflict between Japan's mass media and courts; the dispute was resolved by a film seizure (March 4, 1970) three months after the Supreme Court had upheld the subpoena's constitutionality. The media maintain that Article 21 of the Constitution (freedom of expression) gives them the right to determine when their used or unused television film or still photographs may be employed as court evidence, even in the absence of privileged communications. This and other court cases considered, arising from Japan's perennial demonstrations, illustrate a strong tendency toward in-group unanimity, new problems in news and evidence gathering, and the operation of a non-Western legal system influenced by Japanese, European, and American traditions.

Type
Articles
Information
American Political Science Review , Volume 65 , Issue 4 , December 1971 , pp. 1119 - 1134
Copyright
Copyright © American Political Science Association 1971

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Footnotes

*

This article was written in 1970 while the author was Visiting Research Scholar in the Faculty of Law, Tokyo University. I am indebted to Masami Ito, Koya Matsuo, Naoki Kobayashi, and Yasuhiro Okudaira of Tokyo University, Isao Sato and Eugene H. Lee of Sophia University (Tokyo), Frank O. Miller of Wooster College, and Judge Shunko Muto of the Legal Training and Research Institute. Thanks are also due to the University of Colorado for enabling funds, and to Mr. Takashi Ishida of the General Secretariat, Supreme Court of Japan, and Mrs. Setsuko Tsuda. All translations are my own unless otherwise indicated.

References

1 The term “media privilege” is used herein to capsulize the right claimed by Japan's mass media regarding film and photograph evidence. The Japanese words “hōdō no jiyū” (freedom of information) denote free access to information on the part of both gatherers and consumers of news, as well as freedom to report news.

Concerning the legal status of the “newsman's privilege” in the United States, see “The Newsman's Privilege,” a subcommittee report to the Committee on the Judiciary, U.S. Senate, October, 1966; a Note, “Privileged Communications-Mass Media—A ‘Shield Statute’ for Oregon?” 46 Oregon L. Rev. 99 (1966)Google Scholar; Beaver, J. E., “The Newsman's Code, the Claim of Privilege and Everyman's Right to Evidence,” 47 Oregon L. Rev. 243 (1968)Google Scholar; Guest, J. A and Stanzler, A. L., “The Constitutional Argument for Newsmen Concealing Their Sources,” 64 Nw. U. L. Rev. 16 (1969)Google Scholar; D'Alemberte, Talbot, “Journalists Under the Axe: Protection of Confidential Sources of Information,” 6 Harv J. Legis. 307 (1969)Google Scholar.

None of the “newsman's privilege” disputes which arose in the U.S. during 1970 seems to have involved a claim of privilege extending to already telecast or published material, or to news sources with whom no confidentialrelationship existed. Such claims were made in Japan.

2 Article 21 of the Constitution of Japan:

“Freedom of assembly and association as well as speech, press and all other forms of expression are guaranteed.

2. No censorship shall be maintained, nor shall the secrecy of any means of communication be violated.”

The Constitution of Japan, Supreme Court, Tokyo, 1968.

3 Only a brief clarification of this statement can be offered here. The information media are quite free of overt government restraints in gathering and reporting news. The degree to which freedom of information is limited by self-imposed industry restraints and informal official persuasion is debated, as is the extent to which the press supports or opposes government policiesin Japan's public dialogue.

The editorial views of the leading news media on important political issues do not often suggest marked differences of perspective within the information industry. Nor do they consistently represent either majority opinion—as reflected in opinion polls or elections results—or official policies or the opinions of a particular opposition political party. (A useful compilation of Japanese opinion poll data is provided by the Gekkan Seron Chōsa [Opinion Research Monthly], Finance Ministry Printing Office, Tokyo.) On balance,the media seems establishmentarian, quite nationalistic, and liberal rather thanradical or ultra-conservative.

A world survey of press freedom rates Japan rather highly, but cites industrycentralization and self-regulation as problems, “World Press Freedom, 1966,” Freedom of Information Center Report, No. 181, School of Journalism, Univ. of Missouri, May, 1967. A Japanese specialist, commenting on the report, mentions interference with freedom by political groups and ultra-rightists as an additional problem. Shimizu, Hideo, Hō to Masu Komyūnikēshon (Law and Mass Communications) (Shakaishisosha, 1970), 75–79Google Scholar. All Japanese literature cited in this article was published in Tokyo

Reporters from competing newspapers are organized into “press clubs” (kisha kurabu), each of which is attached to particular politicians or a government agency. Rather than competing with each other for news, members of a press club form a coherent group which determines what news is suitable for release. At times, stable personal ties develop between a press club and its news sources. In such cases, the press club is usually kept well informed, but withthe understanding on all sides that some information may not be meant for immediate public consumption. One who would deviate from the group's consensus inreporting news invites severe ostracism. Newspaper editors generally swim with the current. This mode of operation (which should be kept in mind when assessing the media's stress on the people's right to know) arises quite naturally in Japan's elitist, group-oriented, and consensus-conscious society. It does not imply that the mass media lack a strong sense of independence from government when they (always in company with other elites) feel criticism of policy is called for.

For critical views of the media, see Takuro Namino, Shirarezaru Hōsō (The Unpublicized World of Broadcasting). Gendai Shobo, 1967; Kaigi, Nihon Janarisuto, ed., Masu Komi Kokusho (Mass Communications Black Paper), Rodojunposha, 1968Google Scholar. In English, see Whittemore, Edward P., The Press in Japan Today: A Case Study(Columbia: University of South Carolina Press, 1961)Google Scholar; Packard, George R., Protest in Tokyo: The Security Treaty Crisis of 1960 (Princeton: Princeton University Press, 1966), pp. 278–284CrossRefGoogle Scholar and passim; Halloran, Richard, Japan: Images and Realities, (New York: Alfred A. Knopf, 1969), pp. 159–184Google Scholar. All these American writers refer to instances of nationalistic, emotion-charged, anti-American press campaigns. An occasional nationalistic “mood” (mūdo) does sweep through Japan's media; but day in and day out, the mass media provide very substantial coverage of the U.S., most of it fairly accurate, very little of it openly hostile. American press coverage of Japan seems minimal and of mixed quality. Limited consumer receptivity may be muchless important a reason than the Europocentrism and shallow interest of publishers and editors, and the “kanji (ideograph) curtain” (i.e., linguistic and sociocultural barriers). The major non-Western power and America's most important single partner deserves more and better coverage.

4 Also noteworthy are the very influential Nihon Keizai Shinbun (Japan Economic Journal, 1.8 million); Ch¯unichi Shinbun(3 million); and Sankel Shinbun (3 million). NHK operates two TV channels (over 1,500 stations) and three radio networks (480 outlets).

See The Japanese Press, published annually by the Shinbun Kyokai since 1949; the more substantial Nihon Shinbun Nenkan (Japan Newspaper Yearbook), Shinbunkyokai; and Shuppan Nenkan (The Publishers Yearbook), Shuppan Nyūsusha.

5 “The Canons of Journalism,” The Japanese Press (1970), p. 4Google Scholar. See also the annual NHK Handbook in English “Hōso Hō” (The Law of Broadcasting), “Shuppan Hō” (The Publication Law), and “Shinbun Hō,” (The Newspaper Law), in Roppo Zensho, Yuhikaku, 1970Google Scholar; Ito, M. and Shimizu, H., eds., Masu Komi Hōrei Yōran (Survey of Mass Media Regulations), Gendai Janarizumu Shuppankai, 1966Google Scholar; and “Masukomi Hanrei Hyakusen” (One Hundred Leading Cases Concerning Mass Communications), Jurisuto, extra edition No. 31, Feb., 1971.

Concerning the development and regulation of the mass media in Japan, see these Shinbun Kyokai publications: Nihon Shinbun Kyōkai Nijūnenshi (The Twenty-Year History of Shinbun Kyokai), 1967Google Scholar; Masu Komi no Shakaiteki Sekinin (The Social Responsibilities of the Mass Media), 1966Google Scholar; and Shinbun to Hōritsu (Newspapers and the Law), 1960. See also, NHK's substantial The History of Broadcasting in Japan, 1967 (not for sale): Lent, John A., ed., The Asian Newspapers' Reluctant Revolution (Ames: Iowa State University Press, 1971), pp. 65–87Google Scholar; the Bulletins of Shinbun Kenkyūjo (Institute of Journalism), Tokyo University; Ito, Masami, Genron-Shuppan No Jiyū (Freedom of Speech and Press Freedom), Iwanami Shoten, 1959Google Scholar; Shimizu, op. cit.; Okudaira, Yasuhiro,Hyōgen no Jiyū—to wa Nanika (What Is Freedom of Expression?), Chuo Koronsha, 1970Google Scholar; Yamamoto, Fumio, Nihon Masu Komyūnikēshonshi (The History of the Mass Media in Japan), Tokai Daigaku Shuppankai, 1970Google Scholar; Kitagawa, Ryukichiet al, eds., Gendai no Masu Komyūnikēshon (Mass Communication Fact Book), Aoki Shoten, 1970Google Scholar; Tadokoro, Taro, Shuppan No Senkusha (Pioneers in the Publishing Field), Kobunsha, 1969Google Scholar; Hidaka, Rokuroet al, eds., Sengo Shiryo: Masu Komi (Postwar Materials: Mass Communications), Nihon Hyoronsha, 1970Google Scholar.

6 In English, see Japanese-American Society for Legal Studies, Law in Japan: An Annual, Tokyo, University of Tokyo Press, from 1967Google Scholar; Mehren, Arthur T. Von, ed., Law In Japan (Cambridge: Harvard University Press, 1963)CrossRefGoogle Scholar; Henderson, Dan F., ed., The Constitution of Japan: Its First Twenty Years, 1947–1967, (Seattle: University of Washington Press, 1969)Google Scholar; the Introduction to Maki, John M., Court and Constitution in Japan: Selected Supreme Court Decisions (Seattle: University of Washington Press, 1964)Google Scholar; Dando, Shigemitsu, TheJapanese Law of Criminal Procedure, trans. George, B. J. (South Hackensack, N.J.: Fred B. Rothman and Co., 1965)Google Scholar; Schubert, Glendon and Danelski, David J., eds., Comparative Judicial Behavior (New York: Oxford University Press, 1970)Google Scholar, passim; and the Supreme Court's English-language publications, Outline of Japanese Judicial System (1968)Google Scholar and Outline of Criminal Justice in Japan (1969). Very little scholarly writing on contemporary Japanese Law, even of article length, has appeared in any other Western Language. The notable exception is Noda's, YosiyukiIntroduction au Droit Japonais (Paris: Librairie Dalloz, 1966)Google Scholar. However, a few young European scholars are now in training.

7 For example, in connection with the film evidence controversy, the sympathetic views of Dean Masami Ito (Faculty of Law, Tokyo University) frequently appeared in the mass media. See Asahi Shinbun (The Asahi Newspaper; hereinafter cited as AS), Sept. 9, 22, Oct. 21, 26, 1969. On the same issue, the views of another eminent constitutional lawyer, sought on the mistakenassumption that he agreed with the media's position, were never published. The author was with Dean Ito when, barraged by the media for his reactions within minutes after the Hakata film seizure, he counseled calm and compliance, in view of the Supreme Court's decision. (See Section VI of this paper.) Published or broadcasted zadankai (round-table discussions) concerning publicissues have become an important Japanese institution since they began in the 1920's, and are one of the ways professors, especially Tokyo University professors, exercise a continual influence on Japanese socio-political life.

There is no real parallel in the U.S. to the pervasive social, political and economic influence of Tokyo University, particularly its Faculty of Law. See Kubota, Akira, Higher Civil Servants in Postwar Japan (Princeton: Princeton University Press, 1969), pp. 68–71CrossRefGoogle Scholar; Shimizu, Hideo, Tōkyō Daigaku Hōgakubu: Nihon Erīto no Manmosu Kichi (The Tokyo UniversityLaw Faculty: The Mammoth Base of Japan's Elite), Kodansha, 1965Google Scholar. Japan's official case reporting system moves slowly and doesnot publish all decisions. On the other hand, Japan's national newspapers provide detailed reports on the background and contents of important court decisions on decision day (usually Wednesday), and the full texts of many major court opinions appear within a month or so in such journals as Hanrei Jihō (Nihon Hyoronsha).

8 Note, for example, the Takada case (note 16 below) and the Sapporo high court's quashing of a district court decision on the highly political Naganuma Nike Missile Site Case, AS, Jan. 23, 1970; and Hanrei Jihō (No. 565) 23 (Sept. 21, 1969); Lawrence W. Beer, “The Public Welfare Standard and Freedom of Expression in Japan,” in Henderson, op. cit., p. 205.

The semimonthly Jurisuto (Yuhikaku) and the monthly Hōritsu Jihō (Nihon Hyoronsha) are the most influential of dozens of journals concerned with law and politics, with the former having an edge among jurists. Inregular or special issues, these two journals often provide the most comprehensive analyses available of major sociopolitical and legal issues. Also quite influential are: the monthly Hōsō Jihō, (Hōsōkai) which contains official expatiations on court doctrine; specialized journals such as Amerika Hō, the sister publication of Law In Japan: An Annual (See note 6) and Kōhō Kenkyū (Yuhikaku), the organ of the Japan Public Law Association; and very general, elite-oriented journals such as Chūō Kōron (The Central Review).

Japan's “functional equivalent” to American political science may be a hybrid of Japanese political science (minus some of its historical stress) and the more highly developed interdisciplinary field of “constitutional science” (kempōgaku). Unfortunately, the work of most ofJapan's leading scholars is known to very few foreign political scientists.For background on constitutional science, see Miller, Frank O., Minobe Tatsukichi: Interpreter of Japanese Constitutionalism (Berkeley: University of California Press, 1965)Google Scholar.

9 Concerning group behavior and demonstrations, see note 69below and accompanying text, and Beer, Lawrence W., “Japan 1969: ‘My Homeism’ and Political Struggle,” Asian Survey, 10 (January, 1970), pp. 43–47CrossRefGoogle Scholar; in Japanese, see “Chian to Jinken” (Public Peace and Human Rights), a special issue of Hōritsu Jihō, No. 498, June, 1970. For the prewar modern history of courts and politics, see Wagatsuma, Sakaeet al, eds., Nihon Seijisaibanshiroku (Political Trials in Japan's History), 5 Vols., Daiichi Hoki, 1968–1970Google Scholar.

10 The Kokugakuin University film seizure case is discussed in Section IV of this paper.

11 6 Keishū (No. 8) 974 (1952). For a translation of the Ishii decision, see Maki, op. cit., p. 38. Ishii was convictedunder Article 161 of the Code of Criminal Procedure (Criminal Statutes, I, Ministry of Justice, Tokyo, 1961, p. 97):

“Any person who refuses to be sworn or to testify without due reason shall be punished with a fine not exceeding 5,000 yen or penal detention. 2. In the case mentioned in the preceding paragraph, both fine and penal detention may be imposed according to circumstances.’

Due to postwar inflation, a 1948 law raised the maximum fine by a factor of fifty, Roppō Zensho, Yuhikaku, 1970, p. 1689Google Scholar.

12 Regarding privileged evidence and communication, the Code of Criminal Procedure provides:

“Article 105. A person who is, or was, a doctor dentist, midwife, nurse, practicing attorney, patent agent, notary public or a religious functionary may refuse seizure of articles held in his custody or possession in consequence of a mandate he has received in professional lines and which relates to secrets ofother persons. However, this shall not apply if the client has consented to suchseizure, or if the refusal of seizure is deemed as nothing but an abuse of rightintended merely for the interest of the accused when he is not the client or if there exist any special circumstances which shall be provided by the Rules of Court” (Criminal Statutes, p. 86).

“Article 149. A person who is, or was, a doctor, dentist, midwife, nurse, practicing attorney, patent agent, notary public or a religious functionary may refuse testimony in respect to facts of which he has obtained knowledge in consequence of a mandate he has received in professional lines and which relate tosecrets of other persons. However, this shall not apply if the client has consented, or if the refusal of testimony is deemed as nothing but an abuse of the right intended merely for the interest of the accused when he is not the principal or if there exist any special circumstances which shall be provided by the Rulesof Court” (Criminal Statutes, p. 94).

13 AS, Sept 9, 1969. However, a journalist has, for example, unsuccessfully attempted to escape liability for defamation on grounds that the public nature of his profession absolved him from the need to testify in court in order to prove the truth of his allegations, Supreme Court, Dec. 7, 1955, 9 Keishū (No. 13) 1633 (1955).

14 Concerning seizure warrants and subpoenas, see notes 31 and 44 below. For a discussion of the still photo cases, see Ishikawa, Hiroshi, “Hōdōshashin-Terebifirumu ni yoru Risshō no Dōkō” (Trends and Issues in the Evidentiary Use of Media Photographs and Television Film), Jurisuto (No. 439) 43 (Dec. 1, 1969)Google Scholar. This issue of Jurisuto is hereafter cited as Jurisuto, No. 439. See also Ishimura, Zenji, “Firumu Teishutsu Meirei to Hyōgen no Jiyū” (Freedom of Expression and the Order to Present Film), Hōritsu Jihō (No. 489) 78 (November, 1969)Google Scholar, and in the same issue, Fukuoka, Kiyoshi, “Hakata kara no Repöto” (Report from Hakata), at p. 90Google Scholar; Yasuhiro Okudaira, , “Saikōsai to Hōdō no Jiyū (The Supreme Court and Freedom of Information), Hōgaku Seminah (No. 169) 7 (March, 1970)Google Scholar; Inaba, Michio, “Hōdō noJiyū towa Nanika” (What Is Freedom of Information?), 2 Gendai no me (No. 6) 84 (June 1, 1970)Google Scholar; Beer, Lawrence W., “Nihon ni okeru Masu Komi to Kyōgen no Jiyū” (Mass Communication and Freedom of Expression in Japan), Amerika Hō (2–1970) 173 (1971)Google Scholar. The principal locus in the Code of Criminal Procedure concerning search and seizure is Articles 99 and following, Criminal Statutes, p. 84.

15 Ishikawa, op. cit., pp. 44, 45. Involved in this and a number of later cases was alleged violation of The Penal Code, Chapter V: Crimesof Obstruction of the Performance of Official Duties, Criminal Statutes, I, p. 21Google Scholar:

Article 95. (Obstructing or Compelling Performance of Official Duty)

A person who uses violence or intimidation against a public officer engaged in the performance of his duties shall be punished with imprisonment at or without forced labor for not more than three years. 2. The same applies to a person who uses violence or intimidation against a public officer in order to cause him to perform or refrain from performing an official act or in order to bring about his resignation.”

Supreme Court, First Petty Bench, December 8, 1960; 14 Keishū 1818 (1960), convicted of the “crime of riot” (soranzai); Scalapino, Robert A., The Japanese Communist Movement, 1920–1966 (Berkeley: University of California Press, 1967)Google Scholar, provides background information.

16 See AS, Nov. 10, 11, 12, 1969, and the editorial,Asahi Evening News, November 12, 1969, concerning the Osu Case convictions. On September 19, 1969 another Nagoya district court had acquitted defendants in the somewhat analogous Takada Case on grounds of unconstitutionally delayed justice; but the Nagoya high court reversed this holding, AS, Sept. 19,1969, July 16, 20, 1970. The Taira Case and the Osu, Suita, and May Day incidents of 1952 are collectively referred to as the “Four Great Public Disturbance Cases.” All these cases involved delayed justice, in part because of the large number of defendants on trial and in part due to their political sensitivity even years after the events. The first judgment on the 1952 May Day case was handed down on Jan. 28, 1970, AS (evening ed.), Jan. 28, 1970, and “Mëdë Jiken” (The May Day Case) a special issue of Jurisuto, No. 446, March 15, 1970; in English, see Beer, Lawrence W., “Japan Turning the Corner,” Asian Survey 11(Jan., 1971), p. 78CrossRefGoogle Scholar.

17 Ishikawa, op. cit., p. 44; Supreme Court, First Petty Bench, June 23, 1966, 159 Saikōsaibanshū 1229 (1966), conviction.

18 Ishikawa, op. cit., p. 44; AS, Sept. 9, 1969; Supreme Court, First Petty Bench, July 8, 1965 (unreported case), appeal against conviction dismissed.

19 Ishikawa, op. cit., pp. 44, 45; Supreme Court, First Petty Bench, deliberations in progress at time of writing. The related high court decision is in Daiichi Shōhōtei No. 43 (A) 1614.

20 Ishikawa, op. cit., pp. 44, 45; Hida Teachers Union Incident, Oita Prefecture, Kyōshō, August, 1959, Fukuoka high court, May 4, 1964: 17 Kōtōsai Hanreishū (No. 4) 329 (1962), conviction.

21 Ishikawa, op. cit., p. 45; Yamaguchi district court, Sept. 28, 1966, conviction.

22 Haneda International Airport, Tokyo, Oct. 8, 1967. AS (eve. ed.), Oct. 9, 1969; The Asahi Evening News, Sept. 17, 1969 and Oct. 1, 1970; Japan Times, Feb. 5, 1971. In early 1971, 26 of the roughly 2,000 students involved were convicted. The defense argued in vain that the students' violence was justified because they had tried to prevent Prime Minister Sato from drawing Japan into the Vietnam War.

23 Ishikawa, op. cit., p. 46, note 2, and the 1969 Kyoto University disturbances discussed in this section.

24 Ishikawa, op. cit., p. 45, 46; Itō, Masamiet al, “Keiji Shihō to Hōdō no Jiyōu” (Criminal Justice and Freedom of Information), Jurisuto, No. 439, p. 18Google Scholar; AS, throughout August, 1956, and Sept 9, 1969. It will be noted that NHK, though a publicly owned corporation, is quite independent in such cases. On Dec. 17, 1969, the Tokyo high court upheld the 1961 acquittal of the defendants while taking a dim view of Diet roughhousing. Concerning this case and the earlier 1955 Diet disturbance case, which was soon dropped for lack of evidence, see AS (eve. ed.), Dec. 17, 1969.

25 Concerning the Security Treaty Crisis, see Packard, op. cit. NTV refers to Nippon Terebi Hōsō-mö, or Nippon Television Network Corp.; NET is Nippon Kyoiku Terebi, or Nippon Educational Television Co.; TBS, Tōkyo Hōsō, or Tokyo Broadcasting System; and Fuji, Fuji Terebi, or Fuji Telecasting Co.

26 Ishikawa, op. cit., pp. 45, 46.

27 BSN refers to Niigata Hōsō, the Broadcasting System of Niigata.

28 Ishikawa, op. cit., p. 45; Niigata district court, Aug. 7, 1966; at time of writing, the conviction was on appeal in the Tokyo high court.

29 Ishikawa, op. cit., p. 45; concerning the acquittal of defendants, see AS, Dec. 19, 1969.

30 Ishikawa, op. cit., p. 45; AS, Jan. 18–23, 1969. Later in the year, unprecedented and bizarre disruptions of judicial proceedingsoccurred when students and defense counsel refused to appear in court except as a single body of 500, and trials of small groups were carried to conclusion in their absence. See Hanrei Jihō (No. 577) 47 (Jan. 21) 1970Google Scholar; and AS, almost daily, October through December, 1969. 1969 was perhaps the most eventful year in Japanese judicial history. See Beer, “Japan, 1969 ….” op. cit., p. 49.

31 Article 43 of the Code of Criminal Procedure designates three types of judicial decision:

“Except as otherwise provided in this law, a judgment (han-ketsu) shall be rendered on the basis of oral proceedings.

2. A ruling (kettei) or an order (meirei) shall not necessarily be based upon oral proceedings.

3. In making a ruling or an order, the court may, whenever necessary, make examination of facts …” Criminal Statutes, p. 69).

March 18, 1969 ruling, Third Petty Bench, Supreme Court, Hanrei Jihō (No. 548) 22 (April, 1969)Google Scholar. For a similar ruling, see AS, Dec. 26, 1969. Concerning seizure warrants, see Articles 218 and 430, Code of Criminal Procedure (Criminal Statutes, pp. 111, 160); note 44 below; and Matsuo, Koya, “Kyōsei Sōsa to Shihōteki Kösei” (Forcible Search and Judicial Restraints), Högaku Seminah (No. 159) 13 (June, 1969)Google Scholar.

32 Matsuo, op. cit., p. 14.

33 Matsuo, p. 14; discussions with Prof. Koya Matsuo, autumn, 1969.

34 For example, AS, Sept. 9, 1969; trial in progressat time of writing.

35 Ishikawa, op. cit., p. 45. The Sendai district court ruled in favor of using the videotape as evidence on Jan. 28, 1970, AS, Jan. 29, 1970.

36 See page 1125 above.

37 AS, Sept. 26, 1969; Asahi Evening News, Sept 25, 1969.

38 AS, Oct. 25, 1969; Tokyo Shinbun, Oct. 23,1969. For discussions on one group of students, see AS (eve. ed.), May 21, 1970.

39 AS, Aug. 30, Sept. 4, 1969. For additional sources on the Hakata controversy, see notes 8, 14, and 46. A movie producer presented 1.5 minutes of 16 mm. film on behalf of the Hakata students, Mainichi Shinbun (eve. ed.), Sept. 25, 1969.

40 Concerning the many factions of Zengakuren (National Federation of Student SelfGovernment Associations), see Kenkyukai, Shakaimondai, ed., Zengakuren Kakuha (The Factions of Zengakuren),Sobasha, 1969Google Scholar. “Anti-Yoyogi” refers to a number of anti-Communist factions, generally ultra-leftist. For discussions of their recent activities, see Beer, , “Japan 1969 …,” p. 43Google Scholar, and “Japan Turning the Corner,” pp. 80–81.

41 Hanrei Jihō (No. 562) 23 (Aug. 21, 1969)Google Scholar; Matsuo, Koya, “Keiji Shih¯o to Masu Mejia” (Criminal Justice and the Mass Media), Jurisuto, No. 439, p. 36Google Scholar. The Fukuoka prosecutor unsuccessfully appealed the April acquittal of the student, AS (eve. ed.), Oct. 30, 1970. On Sept. 26, 1969, lawyers for the student asked the high court to request as evidence film in the possession of a “Mr. T.”

42 AS, Sept. 9, 1969; Jurisuto, No. 439, pp. 15–18, 35–37, 51. “Quasi indictment” is the formality under which action is instituted for an alleged abuse of police authority. Since, as in thecase at hand, a prosecutor may not lend support to charges (fukiso shobun) against police officials, postwar Japanese law provides a check and a remedy in the form of an “appeal from a doubtful judgment” (fushinpan seikyū) of a prosecutor to a district court, Article 262, Criminal Statutes, p. 122. Articles 265–269 (pp. 123, 124) provide that a favorable ruling (kettei) by a collegiate court on such an appeal constitutes institution of prosecution; a lawyer is chosen by the court to function as a prosecutor in the subsequent proceedings. A negative ruling by a court may be appealed (kōkoku). On the average, over 100 fushinpan seikyū petitions have been lodged each year. A favorable ruling had been made in a total of only seven cases as of August, 1970, AS (eve. ed.), August 26,1970.

In the Hakata case police were accused of “abuse of authority by publicofficers” (Article 193, The Penal Code, Criminal Statutes, p. 42); “abuse of authority by special public officers” (Article 194); “violence and cruelty by special public officials” (Article 195); violation of freedom of expression (Article 21, Constitution); and abuse of authority under the Subversive Activities Prevention Law (Hakaikatsudö Böshihō, Article 45), Roppō Zensho, p. 911.

43 Itō, Jurisuto, No. 439, pp. 15–16; Horiuchi, Tsuneo, “The Civil Liberties Bureau of the Ministry ofJustice and the System of Civil Liberties Commissioners (Japan),” Effective Realization of Civil and Political Rights at the National Level: Selected Studies (New York: United Nations, 1968), pp. 51–92Google Scholar; Gellhorn, Walter, “Settling Disagreements with Officials in Japan,” 70 Harvard Law. Rev. (No. 4) 685 (Feb., 1966)CrossRefGoogle Scholar; B. J. George, “The ‘Right of Silence’ in Japanese Law,” in Henderson, op. cit., p. 259.

44 KBC refers to the Kyushu Asahi Broadcasting Co; RKB, the RKB Mainichi Broadcasting Corp.; and TNC, the Television Nishi-Nippon Corp. Concerning teishutsu meirei, see Articles 99 and 100, Code of Criminal Procedure, Criminal Statutes, p. 84, and note 31, above. No special punitive provisions come into play when such a court order (equivalent to a subpoena) is not complied with, but the court may issue a seizure warrant. Japanese courts do not have a strong contempt power like that of U.S. courts, Wagatsuma, Sakae, ed., Shinhōritsugaku Jiten, Yuhikaku, 1962, p. 687Google Scholar.

45 For the Fukuoka high court decision, see Hanrei Jihō (No. 569) 23 (Nov. 1, 1969)Google Scholar; and AS, Aug. 30, Sept 3, 4, 19 (eve. ed.), 20, 26, Oct. 24, 25.

46 See notes 8 and 14 above, and the Kyokai's, Shinbun weekly, Shinbun Ky¯okaihō, beginning Sept. 2,1969Google Scholar.

47 AS, Nov. 26 (eve. ed.) and Nov. 27, 1969; Hanrei Jihō (No. 574) 11 (Dec. 21, 1969)Google Scholar.

48 The Constitution of Japan provides:

“Article 12. The freedoms and rights guaranteed to the people by this Constitution shall be maintained by the constant endeavor of the people, who shall refrain from any abuse of these freedoms and rights and shall always be responsible for utilizing them for the public welfare.

“Article 13. All of the people shall be respected as individuals. Their right to life, liberty, and the pursuit of happiness shall, to the extent that it does not interfere with the public welfare, be the supreme consideration in legislation and in other governmental affairs.”

For the text of Article 21, see note 2 above. Concerning judicial use of the public welfare principle, see Beer, in Henderson, op. cit., p. 207.

49 On technical grounds, the tribunal also quashed appellants' contentions that the court order was both procedurally invalid and against Article 32 of the Constitution (“Article 32, No person shall be deniedthe right of access to the courts.”).

50 AS (eve. ed.), Dec. 11, 1969.

51 Conversation with Prof. Masami Ito, March 4, 1970; AS, Feb. 27, March 4 (eve. ed.), March 5, 1970; and note 7, above. The court announced the following December that it would burn the confiscated film prints, AS (eve. ed.), Dec. 10, 1970.

52 AS (eve. ed.), August 26, Sept 2, 9, 1970. The students appealed their case on Sept 1, 1970, citing the uncooperative attitude ofthe police as the major reason why identification of police was difficult The Fukuoka High Court dismissed the appeal for want of sufficient evidence, and the case was not appealed to the Supreme Court, AS (eve. ed.), Nov. 25 and Nov. 30, 1970; Jurisuto, No. 439, pp. 16 and 17; Fukuoka, , Hōritsu Jihō, p. 90Google Scholar. Some constitutional lawyerssuggest that State compensation should be awarded aggrieved parties in cases where an abuse of police authority is established but the identity of the guilty policemen is obscure, conversation with Prof. Naoki Kobayashi, Tokyo U., Sept. 20, 1970.

53 The Maeda challenge was dismissed by the Supreme Court, AS, Nov. 20 (eve. ed.), 1969, and March 5, April 30 (eve. ed.), 1970; and Hanrei Jihö (No. 567) 20 (Oct. 11, 1969)Google Scholar.

54 AS, Dec. 9, 10, 16, 1969.

55 Mainichi Shinbun, Jan. 13, 1970; AS, Jan. 11, 14, 1970.

56 At that time no clear legal remedy existed for a TV concern if a program was videotaped and sold by another private party. The most substantial revision of copyright law in seventy years was passed by the Diet in early 1970. See AS, Feb. 25, 28 and throughout March, 1970; and Yamamoto, Keiichi, Chosakkenhō (Copyright Law), Yuhikaku, 1970Google Scholar.

57 The term “shōzōken” does not appear in any constitutional or legal provision, and was employed not by the court but by appellants. See AS, Dec. 24, 1969; Hanrei Jihō (No. 577) 18 (Jan. 21, 1970)Google Scholar; and Kaino, Michitaka, “Shōzõken to Keisatsuken,” Hōgaku Seminah (No. 169) 2 (March, 1970)Google Scholar. The demonstration was in violation of a local public safety ordinance (kōan jōrei). For Supreme Court doctrine on public safety ordinances, see Beer, in Henderson, op. cit. p. 220; and AS, July 19, 1970.

58 For the text of Article 13, which is used as a basis both to establish and to limit rights, see note 48 above.

59 Article 21, paragraph 2 of the Constitution; see note 2 above.

60 This mode of expression, common in Japanese political debate, seems to reflect a nonmajoritarian view of democracy as based on an organic relationship between competing tutorial elites on the one hand and the generalpublic on the other. In the case at hand, a close relationship characterized by implicit trust was assumed to exist between the people and the mass media.

61 See, for example, the Japanese bar's criticism of press handling of the Kusano Case, Japan Times, March 23, 1971. In a 1964 Tokyo District court decision, the right of privacy was explicitly recognized for the first time in Japanese law, Igarasbi, Kiyoshi and Tamiya, Hiroshi, Meiyo To Puraibashii (Reputation and Privacy), Yuhikaku, 1968Google Scholar; Niwayama, Hideo, “Bekken Taiho to Higisha no Jinken” (Mistaken Arrest and the Human Rights of a Suspect), Hōgaku Seminah (No. 167) 11 (Feb., 1970)Google Scholar; Ono, Fumioet al., Meiyo—Puraibashii no Saibankijun (Judicial Standards concerning Good Name and Privacy), Sakai Shoten, 1963Google Scholar; and by Ito, Masami (Bradshaw, C. J. trans.), “Issues in the ‘After the Banquet’ Decision,”. I. Law in Japan: An Annual 141 (1967)Google Scholar, Puraibashii No Kenri (The Right of Privacy), Iwanami Shoten, 1968Google Scholar, and with Kaino, Michitaka, Puraibashii No Kenkyū (Studies on [the Right to] Privacy), Iwanami Shoten, 1962Google Scholar.

62 For example. Ito, M., “Arasowareru ‘Hōdō no Jiyū’ (The “Freedom of Information” Dispute), AS, Sept 9, 1969Google Scholar.

63 For legal provisions concerning privileged communications, see note 12 above. The author is sympathetically inclined toward a carefully defined newsman's privilege.

64 Concerning the history of Japanese press problems, see sources cited in note 5 above; and Yasuhiro Okudaira, “Nihon Shuppan Keisatsu Hōsei no Rekishiteki Kenkyū Yosetsu” (An Introduction to Historical Research on Japanese Publication Regulations), Hōritsu Jihō, seven articles, April through October, 1967; Figdor, Peter, “Newspapers and their Regulation in Early Meiji Japan, 1968–1883,” unpublished paper, Harvard U., June, 1969Google Scholar; Hanazono, Kanesada, The Development of Japanese Journalism, (Osaka: The Osaka Mainichi, 1924)Google Scholar; Wildes, Harry E., Social Currents in Japan: With Special Reference to the Press (Chicago: University of Chicago Press, 1927)Google Scholar.

65 Note, for example, the differences in perspective of Tomokatsu Maeda (a leading lawyer for students) and Toshio Yamada (a Shinbun Kyokaiexecutive) in Ito, , Jurisuto, No. 439, 15–34Google Scholar.

66 For examples, see an incomplete and unpublished report on instances of obstruction to Asahi Shinbun cameramen, principally during1968 and 1969. The report describes 60 cases, 39 of which involved students, and 15 the police, “Asahi Shinbun Shashicbuin (Kameraman) ga Koko Sūnenkan ni Demoshuzai de Uketa Shuzai Bōgai, Bōkō, Shōgai nado no Jitsurei” (Instances of Obstruction … to News-gathering duringDemonstrations Experienced in Recent Years by Asahi Shinbun Cameramen), Asahi Shinbun Photography Department, Sept. 25, 1969.

67 For a recent example, see any major Japanese newspaper, May 17–21,1970.

68 Note, for example, the repressive implications attached to slight shifts in postwar educational policy during the Ienaga textbook trial, and the modes of intensifying nationalism in prewar Japanese education. For Saburo Ienaga's perspectives, see his “The Historical Significance of the Japanese Textbook of Lawsuit,” The Bulletin of Concerned Asian Scholars, 2 (Fall, 1970), pp. 2–12Google Scholar. For background, see Caiger, John, “Education, Values and Japan's National Identity: A Study of the Aims and Content of Courses in Japanese History, 1872–1963,” unpublished doctoral thesis,Australian National University, Canberra, 1966Google Scholar. The district court decision was in favor of Ienaga. See Jurisuto, special issue, No. 461 (Sept. 5, 1970) and Höritsu Jihō, special issues, No. 486 (Aug., 1969) and No. 501 (Sept., 1970); and Beer, ,“Japan Turning the Corner,” pp. 78–79Google Scholar.

69 The dynamics of this type of ingroupism which is open tolarger loyalties seems one key to understanding Japan's modern nationalism and successes. See Nakane's, ChieJapanese Society (Berkeley: University of California Press, 1970)Google Scholar; Beer, in Henderson, pp. 210–220; Tsurumi, Kazuko, Social Change and the Individual: Japan before and after Defeat in World War II (Princeton: Princeton University Press, 1970)Google Scholar;Hayashi, Chikioet al., Nipponjin no Kokuminsei (A Study of Japanese National Character), Vol. 2, Institute of Statistical Mathematics, Shiseido, 1970Google Scholar; Japan Regional Development Center, ed., Nihonjin no Kachikan (The Sense of Values of the Japanese People), Shiseido, 1970Google Scholar; and Corning, Peter A., “The Biological Bases of Behavior and Some Implications for Political Science,” World Politics 23(April, 1971), esp. pp. 327–328CrossRefGoogle Scholar.

70 A well-informed media executive suggested to the author thatthe TV companies would have been less intransigent had the Fukuoka court dealt with them in a more respectful and conciliatory manner. Concerning conciliation thought and practice, see Henderson, Dan Fenno, Conciliation and Japanese Law: Tokugawa and Modern (Seattle: University of Washington Press, 1965)Google Scholar; and Takeyoshi Kawashima, “Dis-pute Resolution in Contemporary Japan,” in Von Mehren, op. cit., p. 41.

71 These factors may explain in part why a jury system, though once provided for in law, was not accepted; see Von Mehren, op. cit., pp. 21–22, 318–319.

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