午夜剧场

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 generously guaranteed by the Constitution (Article 21), and it is a standard rule in constitutional law to apply strict scrutiny to the regulation of expression. However, at the same time, the Constitution also guarantees "equality under the law" and prohibits gender discrimination (Article 14). In other words, from the perspective of constitutional law, the aforementioned statement can be read as an attempt to de-classify pornography as "expression" by identifying it as a discriminatory act, thereby avoiding strict scrutiny of expression regulation. This implies that what is worthy of constitutional protection is expressive conduct accompanied (or not accompanied) by certain characteristics.

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 those without power" amid disputes over the constitutionality of regulating expressions critical of 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).

In recent years, however, the limits of this perspective have been pointed out. In the United States since the late 1980s, while expression regulations for the relief of minorities, such as hate speech regulations, have been ruled unconstitutional and void as government intervention in the marketplace of ideas, there has been a trend where political contributions by mega-capital are protected as "expression." According to scholars who see this as a problem, the reproduction of the existing power order occurs 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 turned 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 and government intervention, and the distinction between "ideas" that should be circulated and other acts). With this awareness of the issues, I intend to continue grappling with the words mentioned at the beginning.