KAB Dialogue


ConversationAugust 4, 2014 UP

Considering the revision of the Entertainment Business Act
(Freedom of Expression)

Report 1 on the Open Network for Performing Arts Management Symposium “Regarding Freedom of Expression”

  • Speaker 1:Takahiro Saito (“Let’s DANCE” Petition Promotion Committee joint representative and lawyer (Saito Law Office))
  • Speaker 2:Tomoharu Hara (Culture and Arts Planning Section, Culture and Arts City Promotion Office, Culture and Citizens Affairs Bureau, Kyoto City)
  • Speaker 3:Hiroshi Yoshioka (Professor in the Graduate School of Letters (Dept. of Aesthetics and Art Theory), Faculty of Letters, Kyoto University)
  • Speaker 4:Hiromi Maruoka (President of the Japan Center, Pacific Basin Arts Communication (PARC), Vice President of the Open Network for Performing Arts Management)
  • Moderator:Yusuke Hashimoto (KYOTO EXPERIMENT Program Director, President of the Open Network for Performing Arts Management)

The concept shadowing “freedom of expression”, that one’s freedom can be infringed from without—the traditional image of “authority” versus “the people”—is no longer the reality. Threats to “freedom of expression” may have already manifested themselves, as if eating away from within our network, which has grown unhindered. Kicking off with specific reference to the handling of revisions to the Entertainment Business Act regulating the dance industry, the initial focus of discussion was on questions of what “freedom of expression” means for the creative realm, and the problems and theoretical background to the regulations.

*This document is a record of a symposium held at Kyoto Art Center on October 14, 2013 on the theme of “Freedom of Expression” by the Open Network for Performing Arts Management, a membership-based national and international network connecting performing arts and society that was inaugurated in February 2013. Convened by the Open Network for Performing Arts Management in association with KYOTO EXPERIMENT; supported by the charitable cultural foundation Saison.

Report on the activities of the “Let’s DANCE” Petition Promotion Committee, aimed at revising the Entertainment Business Act

Saito:First, by way of explaining the background, the genesis of this is that around the end of 2010, in the Kansai area, centered on Osaka and Kyoto, various clubs—places where one could enjoy dance and a drink and experience various forms of cultural communication—were the subject of police investigation on an unprecedented scale. Unfortunately, the impression of clubs at the time was extremely bad: they were seen as places where various incidents occurred, hotbeds of evil, gathering places for delinquents, that sort of thing. Charges were laid on a large scale, with places being investigated not just in the case of trouble, but also simply because “patrons were allowed to dance without a permit.” The actual numbers are slightly larger, I think, but over about a year the names of some 60 arrested individuals came out, with twenty establishments closed. Many clubs are small, and closures followed one after the other in a domino effect. Clubs took measures to avoid complaints from or incidents with neighbors, but the charges didn’t stop. Established clubs that had a long history of fostering artist talent also came to be charged. And it was the clear excessiveness of the charges that led to the formation of “Let’s DANCE,” the movement opposing the Entertainment Business Act.

Hashimoto:Could you please explain what kind of law the Entertainment Business Act that prompted the investigations is, and what kind of gap exists between it and business in practice?

Saito:The Entertainment Business Act (Act Pertaining to the Regulation and Adjustment of the Adult Entertainment Industry) isn’t connected with sexual services, but rather is a law that has regulated various entertainment services through various eras. “Dance” was the very first service to be subject to regulation, under which “businesses that allow patrons to dance” and “businesses which allow patrons to dance and to consume food and drink” were only allowed with the permission of the police or a public-safety commission. This applied not only to clubs but to all businesses allowing patrons to dance—even dance schools, for example. The Act was originally enacted in 1948, just after the War, a time when Japan was in an impoverished state, and various kinds of dance culture were coming in from overseas, among which, for example, there were kinds of prostitution employing dance, or prostitution where part of the negotiations involved dance, and since this was seen as injurious to society, dance was regulated. The Act has remained intact to the present day, leading to such blanket charges of clubs as I outlined earlier.

Hashimoto:Please tells us about the actions have been taken to change this anachronistic Entertainment Business Act.

Saito:We inaugurated the “Let’s DANCE” Petition Promotion Committee in May last year, starting off with a citizens’ movement to collect signatures to present to the Diet as a petition. The petition ran throughout Japan, including Kyoto, and in the space of a year we collected 150,000 signatures on paper—not on the Net—which were presented at the Diet in May this year. At that time, a group of some 60 Diet members formed the Dance Culture Promotion Diet Member Alliance in protest against the law unjustly restricting dance culture, and the signatures were submitted to them. Right now the Diet member alliance is debating the revision of the Act.

Hashimoto:I’d like to ask a little more about the Business Entertainment Act. The situation is that if someone obtains a permit, people can dance, but the fact that many clubs are operating without getting permits points to difficulties with the Act. Can you elaborate on this?

Saito:Yes, people often ask, “Why can’t the clubs just get a permit?”, but it’s not as simple as that. First of all, a condition of obtaining a permit is that the area of the business be regulated to a minimum of 66 square meters, below which you won’t get a permit. Clubs are located in urban areas and are often experimental spaces, so many do not have ample funds. A bunch of small clubs thus tends to band together, forming their own culture. So-called “little boxes,” places of less than 66 square meters, play an important role as sites of extremely experimental forms of expression, but they are physically incapable of obtaining the requisite permit. The other issue is business hours. Even if one obtains a permit, as a general rule one will only be permitted to operate until midnight. Bylaws allow operation until 1:00 a.m. in entertainment districts, but late-night business operations are not permitted in this country. A large section of club culture has been cultivated as a late-night culture for many years, and such business operations become criminalized when things are put to the test, a quite unbelievable state of affairs.

Maruoka:Before the present crackdown, it was normal to see premises of under 66 square meters open till 3:00 a.m., wasn’t it. I don’t think anyone was doing any investigating then.

Saito:Occasionally police would investigate or patrol as a result of some incident, but the current crackdown is indeed unprecedented.

Hara:Is there an established theory as to why only now there’s been a crackdown based on a law enacted in 1948?

Saito:There are various theories, but there have been cases where clubs actually caused a public nuisance, and there’s been a hardening of attitudes towards those. Also, I think the large police bureaucracy in Japan sees it as their duty to “clean up” society and keep cities orderly and safe at night. The present result is that “expression” gets pushed far down the list of priorities.

Hashimoto:Could you please give your impressions about the speed and size of the petition, those 150,000 signatures that were collected in a year?

Saito:Collecting 150,000 handwritten signatures in a year for a cause like this is quite remarkable, I think. The collection process was faster and more successful than everyone had initially hoped. Of course a lot of it is down to the many volunteers who covered large areas collecting signatures, but it’s also due to the topic that we are dealing with at this symposium: “freedom of expression.” If, for example, the signature-collection drive had been initiated by individuals from the club industry trying to safeguard their rights, I doubt such a number of signatures would have been collected. One characteristic of the “Let’s DANCE” activities is that the group isn't composed of industry figures but rather club patrons and artists who express themselves there, and the matter has been framed as a fundamental question of freedom of expression. That was the decisive element, I think. Probably the general public has a pretty dim view of clubs. Two or three years ago, when the crackdown began, a lot of responses from people were along the lines of “Celebrities get up to no good there, young people party at night and cause trouble for the city—why do we need to protect things like that?” In short, the social value of dance hadn't been communicated to the world at large. That’s why we gave a presentation about the great cultural value of dance in the world's cultural centers, and how they consider its economic potential to be large. Then some members of the Diet and general citizens began to alter their opinions and start accepting the value of dance culture as one form of expression.

The wider effects of claiming that the Entertainment Business Act infringes on freedom of expression

Hashimoto:Before moving on to the heart of the issue of freedom of expression, regarding the revision of the Entertainment Business Act, what Let's DANCE has intended with its activities is not a relaxation of the regulations, but rather removing dance as one of their targets. Could you tell us the background behind the convergence of views on this issue, and what sort of discussions led to the articulation of this goal?

Saito:To this day, there remains a diversity of opinions within Let's DANCE and among club operators on this point, but it boils down to dance as an expressive act, and not being able to run a dance-related business without a permit from the police. The claim is that it's not just a matter of club operators being free to run a club. The typical perspective of the average jurist or lawyer regarding a club that was subject to a charge, and the Entertainment Business Act allowing it, would invariably be, when asked about what rights it was infringing, that it was infringing on the business freedom of clubs and dance schools. But when it's considered from the perspective of the places affected, it isn't just business freedom that is at issue, but places that are spaces for the expression of dance, and thus it is properly an issue of “freedom of expression,” I would contend.

Hashimoto:So on one hand we have the “freedom of expression” ordained as a fundamental human right in the Constitution, and on the other a law constraining a manifestation of that freedom, which is dance. Could you characterize the relationship between the Constitution and the Law?

Saito:Issues of law are inevitably complex, but please bear with me, as this is a very important issue. There are many points about the relationship between the Constitution and the Law that are not at all well understood, but it’s often said that “the Constitution is the law above the Law, and supersedes it.” What this means is that the Law is created as the set of rules to allow the Diet and society to operate smoothly, and the relationship between them consists of the Law's enactment, application, and enforcement, which are carried out by the Diet and cabinet. However, laws, being rules, invariably constrain people's individual freedoms. As to who laws are directed at, the answer is that the State directs its laws toward its citizens. The citizens have tasked the State with deciding who the Constitution is aimed at. The State commits errors as well, and the Constitution is a barrier that comes into effect in such circumstances.
The Constitution guarantees various rights that the State is not supposed to be able to impinge upon, but the most important of them is said to be freedom of expression. Why this is said to be the most important right is that expressive acts are at the noble core of humanity and the fount of much of its culture. But there is a little-known term in constitutional studies called “democratic process theory,” and according to it what supports the democratic process is freedom of expression. For example, if their property rights are infringed, citizens may go to the polls, attend demonstrations, and so on, and through the exercise of their expression be able to re-establish the infringed property rights. However, once a restriction has been imposed on freedom of expression, the very expression required to rectify the situation becomes impossible, and hence the expressive acts infringed upon in the democracy cannot be restored. This is why it is described as the right that must be upheld above all. Hence the Entertainment Business Act’s infringing upon freedom of expression is of paramount importance.

Freedom of expression in artistic expression

Hashimoto: We’ve gone over it at quite a pace, but through the Let’s DANCE activities we’ve confirmed freedom of expression in the context of the system of the Law and the Constitution. Yoshioka-san, can I now ask you to consider freedom of expression not just in terms of this system, but from the theoretical standpoint of what freedom of expression means to us as humans.

Yoshioka:I've been active in the world of modern art while simultaneously carrying out research, and thus I consider freedom of expression from a slightly different context to that of the Entertainment Business Act or clubs. There's a very close artist friend of mine called Tadasu Takamine who is involved in KYOTO EXPERIMENT. On the 5th of October, he performed his project “Japan Syndrome? Berlin Edition” in front of Kyoto City Hall, attended by many people who watched or dance. I was very impressed. It was the first event of its type, I believe. In 2003, when I was Director of the Kyoto Biennale, I had a Slovakian artist give a performance in front of the City Hall, but it was completely silent, and there was no negative feedback about it. In the present case, however, there were apparently complaints about the noise. I was born and bred in Kyoto, and for me it’s so exciting to see an everyday space like that turned into something out of another world, and this despite the fact that I don’t dance or go clubbing, and I hate loud noises. I have a visceral revulsion of explosions. I think it’s important to have someone like me speaking on this. It’s a given that those people committed to dance and for whom it’s an integral facet of their lives are going to stand up for it, but does that mean those differently inclined need to be indifferent to it? Someone who thinks that a loud noise in a public space is noise pollution probably believes, as they themselves are uninterested in art or performance, that the person making it is selfishly enjoying him- or herself at their expense. And this impression leads to people making complaints. So when I think about freedom of expression, I always think it's important to consider the impression of someone who's not a member of the interest group itself. This is of course applicable not only to the dance and Entertainment Business Act problem, but equally to the regulation of various images, films, anime, the child pornography in the news at the moment, and the like.

Tadasu Takamine, “Japan Syndrome? Berlin Edition.” Photo: Tetsuya Hayashiguchi

Yoshioka:The freedom of expression Saito-san was talking about before is a fundamental problem. I think it involves the freedom to express things like one's thoughts and beliefs or political stance, but in my case, it refers to “artistic expression.” As to how artistic expression and expression in general differ, artistic expression has value attached to it. Even if it is a little noisy and irritates some people, or provokes a degree of discomfort, we can clearly judge it to have value. This judgment must be made from the standpoint of a person who is unconnected with the interest group, as I mentioned before. I research aesthetics, but this has little connection with most people. It's mostly considered to be about viewing beautiful things in a tranquil setting. “Aesthetic judgment” is the basis of aesthetics—in other words remaining detached, not having an interest in something. “Interest” here is not finding something interesting: it means having a vested interest in it. Making a judgment shouldn't be about benefiting your own community or group; rather, it involves recognizing the value of something quite disinterestedly. I feel that it's difficult to make, or indeed perceive, this distinction in our present era.
Furthermore, regarding the previous discussion of regulation of the content of various kinds of expression—in law, or rather criminal-law studies, there is such a thing as “the concept of relative obscenity.” When a certain work contains sexual expression, the judgment as to whether or not it is obscene is usually based on the explicitness of depiction of sexual organs or acts. However, the concept of relative obscenity means being extremely mindful of the context of the expression—the creator's intentions, the work's reception, etc.—so when a work is seen as having extremely high artistic or intellectual value, the school of thought is that, although it is obscene, its obscenity is, relatively speaking, acceptable, and therefore will not be restricted.
I’m not a legal expert, but this is extremely close to how I think. It’s likely based on the question of “value.” In the world of the present day, everyone does their level best to get by without making value judgments: in other words, it's the attitude of “to each his own.” For example, if I ascribe value to Takamine-san’s performance in front of City Hall, people will retort, “What are you talking about? You’re just saying that because you like it.” Even if I deny this, they might be influenced by my position as a professor of Fine Arts at Kyoto University. But I don’t think that’s it. The most important thing is to challenge the currency of the thought, all too common these days, that someone making a loud noise is just playing a prank, or that the intention behind sexual expression is simply to titillate. So I personally signed the petition, but I think it's of more use to address the topic by writing about it or discussing it as we're doing now.

Hashimoto:The question of avoiding making value judgments is fascinating. When I'm running the festival, too, and there's something a bit controversial on the program, I'm very positive about it, as I look forward to the clash of various opinions that it is bound to engender. But on the other hand, there seems to be a trend toward treating any unfavorable opinions arising from the multitude as complaints. But they're not complaints, just rather one opinion among many. I want to use the festival to argue that the artistic space is exactly where such clashes should occur. Maruoka-san, what do you think about what's been said up to now?

Maruoka:As a drama producer, I can probably still say we're living in an era where there is little outside regulation, but even so the issue of so-called self-regulation often comes up. This is a bit of a change of topic, but the film director Jean-Luc Godard has said freedom of expression is something for everyone. For example, even those held in Auschwitz had the freedom to say “Don't kill me,” but whether or not that was realized was another matter. No-one can prevent freedom of expression, but the problem is whether or not society wants to accept it.
Earlier Saito-san mentioned democratic process theory, and what struck me was that the other day when I was running the Sound Live Tokyo festival, which explores the boundaries of sound and music, the artist Christine Sun Kim, who has been deaf since birth, gave a sound performance. We were in an outdoor performance space where the maximum allowable sound level was 80 decibels. But Christine Sun Kim can perceive sound at 95 decibels or above. To give you an idea of how loud 95 decibels is, sound levels increase exponentially per single decibel increment, and 100 decibels, like at some thrash-metal concert, would only be tolerable for three seconds.
I sent out a letter to the neighborhood saying that we would do our best to keep the noise down, but that we would probably breach the noise policy due to the physical condition of the performer. This was probably another case of freedom of expression versus social consensus, but present society is supportive of those with different physical conditions and has a consensus that it does not want such people to be disadvantaged, so it was pretty positively received. On the other hand, what about hate rallies. I was personally unable to see any value in the expression of opinion at the hate rally held in Shin-Okubo, but when we guarantee others' freedom to express their ideas and beliefs, it makes us think long and hard about regulating them through law. The reason I raised these two examples is that dramatic expression is a genre that doesn't actually always have to be art. For example, it could be part of a movement, it could be more pure entertainment, it could be more artistic—it's a genre that can go out in various directions. Amid this, it's extremely difficult to guarantee freedom of expression, but this shouldn't be influenced by the content. So those present from the world of dramatic arts shouldn't be having a discussion about whether this particular expression is worthy of the freedom that attends it. Without talking of another kind of value, if it should appear that we are about to lose what we have, what kind of movement would be needed. I think it would be difficult to have a movement for the world of dramatic arts alone.

Hashimoto:Maruoka-san has kindly brought up the keyword “self-regulation,” so I'd like to direct the discussion to the topic of what we currently consider to be important in terms of expressive activities. Let's consider how freedom of expression and the responsibility of the person who has performed the expression are two sides of the same coin. Hate rallies came up before. Freedom of expression is not unlimited: there is a school of thought that says in the case of acts of expression that hurt others or infringe on their privacy—in short, clash with their human rights—freedom of expression must be restricted. As I say, this is one school of thought. There has actually been a debate in this country about this, and issues of the invasion of privacy have been taken to court. Based on that, self-regulation of expression is actually occurring, but what I want to consider is who should bear the burden of responsibility for the expression. I believe it basically resides with the person who expressed it, but thinking about the actual world of dramatic arts in Japan, when a very public place is the center of an expressive act, in many cases responsibility falls not on the author of the expression, but rather on the organization or place behind them. As a result, there are cases where the organizer, and the related theater or festival, are said to be employing their own criteria to restrict expression. Especially in recent years, theatrical law has been overhauled, and with the accompanying expansion of subsidies, the question of “public benefit” has increasingly come to dog dramatic arts. So I want to raise the issue of how far we will take expression in the environment of self-regulation.

Maruoka:Before addressing that—we first articulated the idea that expression that hurts someone else is bad; I'd like to question whether it's fundamentally appropriate to put freedom of expression and infringement of human rights in opposition to each other. Yoshioka-san, what do you think?

Yoshioka:Well, if this opposition were to be accepted at face value, then ultimately we wouldn't be able to express anything. Putting aside the issue of artistic value, in one way, the very nature of the expressive act means that anything someone says could hurt someone. Hate-speech rallies have been raised: another example is that rallies in Europe denying the Holocaust are banned. Many countries ban them by law. Questioning the Holocaust is forbidden because it's a special case that embodies the shared trauma of a lot of people. In Japan, when people hold hate-speech rallies that discriminate on the basis of race or ethnicity, they claim it's a matter of freedom of expression, but racial discrimination is not something that society at large condones, so it's unacceptable. Therefore, there will inevitably be some restrictions, but they have to be regarded as exceptional.

Maruoka:In that case, things that hurt others or infringe on their human rights, and freedom of expression, should be considered separately. Any expression connected to art may destroy or damage something, but at the same time creates something. There is inherent potential for this to cause friction. Thus they should be kept separate. And I suppose we should go on to the next point.

Hashimoto:Indeed. So we've discussed the prevailing thinking that expression that hurts someone is unacceptable. I think in practice on the ground it's difficult to separate the issues.

Saito:Regarding the idea that expressive acts must first of all have value, I don't think that's necessarily the case, but I do think an absolutely essential premise is guaranteeing the process of diverse discussion by which everyone gauges the value of something. As with this discussion, thrashing out what is good and bad—be it expression infringing on human rights, or laws restricting expression—it isn't at all a question of a process of discussion in which one opinion finally prevails over others, confirming that such and such is in fact bad. Although this is the significance of an expressive act in a public space, when someone does something in an administered public space, it is possible that the administration will judge it. This is the veritable double-edged sword: if one can only express something that has value, this has problematic aspects for expression in a public space.

→ continued on Report 2 on the Open Network for Performing Arts Management Symposium “Regarding Freedom of Expression”

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