Judgments of the Supreme Court

Search Results

2021 (O) 1617

Date of the judgment (decision)

2023.02.21

Case Number

2021 (O) 1617

Reporter

Minshu Vol. 77, No. 2

Title

(Civil Case) Judgment concerning the application of Article 5, item (xii) of Administrative Rules on Kanazawa City Hall, etc. (Rule No. 55 of Kanazawa City, 2011) to the acts related to the assembly held at the square in front of Kanazawa City Hall and Article 21, paragraph (1) of the Constitution

Case name

Case seeking compensation for loss or damage

Result

Judgment of the Third Petty Bench, dismissed

Court of the Prior Instance

Nagoya High Court, Kanazawa Branch, Judgment of September 8, 2021

Summary of the judgment (decision)

Applying Article 5, item (xii) of Administrative Rules on Kanazawa City Hall, etc. (Rule No. 55 of Kanazawa City, 2011) to the acts related to the assembly held at the square in front of Kanazawa City Hall does not violate Article 21, paragraph (1) of the Constitution. (There is a dissenting opinion.)

References

Article 21, paragraph (1) of the Constitution, Article 5, item (xii) of Administrative Rules on Kanazawa City Hall, etc. (Rule No. 55 of Kanazawa City, 2011)

Constitution
Article 21, paragraph (1) Freedom of assembly and association as well as speech, press and all other forms of expression are guaranteed.

Administrative Rules on Kanazawa City Hall, etc. (Rule No. 55 of Kanazawa City, 2011)
(Prohibited Acts)
Article 5 It is prohibited for any person to act as set forth below in the city hall, etc.
(xii) To demonstrate, such as showing force or spirit to others individually or in a group for the purpose of agreeing or disagreeing with a specific policy, principle, or opinion.

Main text of the judgment (decision)

The final appeal is dismissed.
The costs of the final appeal shall be borne by the appellants of the final appeal.

Reasons

Concerning the reasons for the final appeal stated by the appellant of the final appeal and the counsel for final appeal, IWABUCHI Masaaki, et al.
No. 1 Outline of the case
1. In this case, where the appellant, ISHIKAWAKEN KENPO WO MAMORU KAI (Association for Safeguarding the Constitution, hereinafter referred to as the "Appellant MAMORU KAI"), applied for the permission set forth in Article 6, paragraph (1) of Administrative Rules on Kanazawa City Hall, etc. (Rule No. 55 of Kanazawa City, 2011, hereinafter referred to as the "Rules") for the purpose of holding an "Assembly for the 70th Anniversary of the Enforcement of the Constitution" (hereinafter referred to as the "Assembly") at the square in front of Kanazawa City Hall, which was under the administration of the Mayor of Kanazawa City (hereinafter referred to as the "Square"), the mayor made the disposition to the effect not to give permission. The Appellant Association and other appellants who are relevant persons seek against the appellee compensation for loss or damage in accordance with Article 1, paragraph (1) of the State Redress Act.
2. The provisions of the Rules relevant to this case are as follows:
The Rules stipulate that the purpose thereof is, by setting forth the matters necessary for the administration of City Hall, etc., to preserve City Hall, etc. and maintain order, and thus to contribute to performing public services smoothly (Article 1). Furthermore, the Rules stipulate that, as used in the Rules, "City Hall, etc." means the buildings provided for the affairs or activities of the appellee together with their attached facilities and the sites thereof (except for those directly provided for public use) that are under the administration of the Mayor of Kanazawa City (Article 2).
Article 5 of the Rules stipulates that it is prohibited for any person to act in City Hall, etc. as set forth in the items of Article 5. Article 5, item (ii) specifies acts that cause noisy conditions, such as using loudspeakers; item (iii) specifies acts of bringing in flags, banners, placards, standing signboards, etc.; item (xii) (hereinafter referred to as the "Provision") specifies acts of demonstration, such as showing force or spirit to others individually or in a group for the purpose of agreeing or disagreeing with a specific policy, principle, or opinion; and item (xiv) specifies, except for those listed in items (i) through (xiii), acts deemed by the administrator of City Hall to be detrimental to the administration of City Hall, etc. However, Article 6, paragraph (1) of the Rules stipulates that the administrator of City Hall may permit the acts specified in Article 5, items (i) through (vii) if the administrator considers that there is a special reason, such as being closely related to the affairs or activities of the appellee and that such act has no particular detriment to the administration of City Hall, etc. Article 6, paragraph (4) of the Rules stipulates that those who wish to obtain the permission mentioned above shall submit in advance a written application on the designated form.
3. The outline of facts lawfully determined by the court of prior instance is as follows:
(1) The Square is part of the site of the building used as the main office of the appellee and is located immediately north of the building. The Square is a flat square that is not enclosed by a wall or fence, with a length of 60 meters north to south and 50 meters east to west. The north side and east side of the Square face a road.
At the Square, assemblies have been held with permission as set forth in Article 6, paragraph (1) of the Rules that support the appeal of the prohibition of atomic and hydrogen bombs, as well as events that introduce the activities of international exchange groups and music festivals. The Appellant Association itself held assemblies at the Square, the so-called GOKEN SHUKAI (Assembly of Supporters of the Current Constitution), in November 2019 and May 2020 in a scale and manner different from those of the Assembly with permission as set forth in the paragraph mentioned above on the premise that it would not act as set forth in the Provision.
(2) On March 31, 2017, the Appellant Association applied for permission as set forth in Article 6, paragraph (1) of the Rules to hold the Assembly at the Square for the purpose of safeguarding the Constitution (especially Article 9), etc. On April 14, 2017, the Mayor of Kanazawa City made the disposition to the effect not to give permission as the Assembly would commit the acts set forth in the Provision and would be detrimental to the administration of City Hall, etc.
No. 2 Concerning No. 3-2 and 3-3 of the reasons for the final appeal
1. Concerning the actions prohibited at City Hall, etc. (meaning City Hall, etc. as set forth in the Rules, the same applies hereinafter), Article 5, item (xiv) of the Rules broadly stipulates "acts deemed to be detrimental to the administration of City Hall, etc." The Provision is considered to specify the content of such acts. Thus, it is reasonable to interpret the Provision as specifying the acts of demonstration for prescribed purposes that cause detriment to the administration. Furthermore, in light of the fact that the Provision prohibits acts of demonstration for the "purpose of agreeing or disagreeing with a specific policy, principle, or opinion," it should be interpreted that the detriment to the administration mentioned above means the detriment that the apparent political neutrality of the appellee will be deteriorated, thus smooth performance of public services will not be ensured (see Article 1 of the Rules) due to the acts of demonstration being performed to make appeals for a specific policy, principle, or opinion (hereinafter referred to as the "Policy, etc.") by showing force or spirit to others at City Hall, etc. provided for the public services of the appellee.
2. (1) The counsel's arguments are interpreted to mean that applying the Provision to the acts pertaining to the Assembly at the Square violates the freedom of assembly and thus violates Article 21, paragraph (1) of the Constitution.
(2) A. Although the freedom of assembly guaranteed by Article 21, paragraph (1) of the Constitution shall be especially respected as one of the significant fundamental human rights in democratic societies, it goes without saying that freedom of assembly may be restricted to the extent necessary and reasonable for the sake of the public welfare. Whether or not such restriction on freedom is accepted as being necessary and reasonable should be determined by comparing factors, including the degree of necessity to restrict the freedom, the content and nature of the freedom to be restricted, and the manner and degree of the specific restriction to be imposed thereon (see 1986 (Gyo-Tsu) 11, the judgment of the Grand Bench of the Supreme Court of July 1, 1992, Minshu Vol. 46, No. 5, at 437).
B. The Rules including the Provision are established on the basis of the authority of the Mayor of Kanazawa City to administer City Hall. The office building of the ordinary local government (including the site of the building, the same applies hereinafter) shall be maintained and administered taking into consideration that the building may be used by the residents and others in the course of being provided for public services. However, the office building of the ordinary local government is in principle a facility to be provided mainly for public services and is, in this regard, different from the facilities, including roads or parks, provided mainly for shared use by the general public.
Taking into consideration such nature of the office building of the ordinary local government and comparing from the viewpoint mentioned in A above, if, at the office building where a core part of public services are performed, an assembly etc. is held concerning issues on which political disputes exist and the acts of demonstration are performed for the purpose of making an appeal for a specific Policy, etc. by showing force or spirit to others, it will appear as if the appellee is acting for the benefit of persons in a specific position since it will seem that the Mayor of Kanazawa City has provided City Hall, etc. for the purpose of such acts of demonstration. This will bring the apparent political neutrality of the appellee into doubt and the confidence of the residents in the administration will be damaged, thus possibly causing the detriment that smooth performance of public services is not ensured. The purpose of the Provision is not to cause the detriment mentioned above and such purpose is reasonable and justifiable.
Furthermore, as the detriment mentioned above may be caused by the situation itself in which the acts of demonstration mentioned above were made at the office building, etc., it is difficult in its nature not to cause the detriment mentioned above by measures, including any additional conditions on the basis of such demonstration or subsequent explanation by the appellee. On the other hand, the Provision prohibits only performing prescribed demonstrations at the office building, etc. provided for public services, and does not prohibit the use of other places, especially public facilities whose purposes originally include providing for assembly, etc. (See Article 244, paragraph (1) and paragraph (2) of Local Autonomy Act). Therefore, the degree of the restriction to be imposed by the Provision on the freedom of assembly can be said to be limited one.
C. In applying the Provision to the acts pertaining to an assembly to be held at the Square, there is no reason to interpret differently from B mentioned above. The restriction on the freedom of assembly in such case should be said to be limited to the extent necessary and reasonable.
The counsel argues that the Square is suitable to use for the Assembly, etc., and various other assemblies, etc. are actually held at the Square. However, as mentioned in No. 1, 3 (1), since the Square is located near the building used as the main office of the appellee and administered or used integrally with the same, in the case that an assembly, etc. is held at the Square concerning issues on which political disputes exist, and the acts of demonstration are performed in order to make an appeal for a specific Policy, etc. by showing force or spirit to others, it will still appear as if the appellee is acting for the benefit of persons in a specific position since it will seem that the Mayor of Kanazawa City has provided the Square which is part of City Hall, etc. for the purpose of such acts of demonstration. Furthermore, as the result of the fact that the Mayor of Kanazawa City does not prohibit, as an exercise of its authority to administer City Hall, the use by the residents of the Square to the extent that no detriment exists for the maintenance and administration of City Hall, etc., the above various assemblies, etc. are actually held at the Square, which does not alter the nature itself of the Square as part of City Hall, etc.
(3) Consequently, applying the Provision to the acts pertaining to the Assembly at the Square cannot be said to violate Article 21, paragraph (1) of the Constitution.
It should be said that the above is clear in light of the purport of the judgment of the Grand Bench of this court (1952 (O) 1150, the judgment of the Grand Bench of the Supreme Court of December 23, 1953, Minshu Vol. 7, No. 13, at 1561, the judgment of the Grand Bench of the Supreme Court of July 1, 1992, as above mentioned). The judgment of the Third Petty Bench of the Supreme Court of March 7, 1995 (1989 (O) 762, Minshu Vol. 49, No. 3, at 687) cited in the counsel's arguments addresses a different case and is not applicable to this case.
3. According to the explanation given above, the Provision cannot be said to be unclear nor to be an overbroad regulation.
4. For the reasons described above, the arguments made by the counsel are not acceptable.
No. 3 Concerning other reasons for final appeal
The counsel's arguments of a violation of the Constitution are substantially arguments of an erroneous finding of facts or a mere violation of laws and regulations, and none of these reasons constitutes the ground as set forth in Article 312, paragraph (1) and paragraph (2) of the Code of Civil Procedure.
Accordingly, the Court unanimously decides as set forth in the main text of the judgment, except for the dissenting opinion stated by Justice UGA Katsuya.
The dissenting opinion stated by Justice UGA Katsuya is as follows:
As my opinion differs from the majority opinion on No. 2, I would like to state my opinion thereon.
1. Concerning No. 3-2 and 3-3 of the appellants' reasons for final appeal
(1) Concerning the Square being a property for public use
The majority opinion discusses this case as a matter of administration of City Hall etc. on the basis of the consideration that the Square is positioned as part of City Hall, etc. under the Rules. However, I think that the Square is a property for public use and constitutes a public facility as set forth in Article 244, paragraph (2) of the Local Autonomy Act or a facility equivalent thereto. The reasons therefor are as follows.
A. (A) As to the appellee, the Guidelines for the Administration of Kanazawa City Hall were established on June 19, 1970 (hereinafter referred to as the "Guidelines for the Administration of City Hall"), and thereby the guidelines about the administration of City Hall etc. under the administration of the Mayor of Kanazawa were stipulated. However, as the old square (meaning the square before the repair work carried out prior to the commencement of the provision for use of the Square on March 21, 2017; the same applies hereinafter) was completed on July 1, 1983, besides the Guidelines for the Administration of City Hall, the "Guidelines for the Administration of the Square in front of Kanazawa City Hall" were established concerning the administration of the old square (hereinafter referred to as the "Guidelines for the Administration of the Square") and accordingly, a provision was added to the Guidelines for the Administration of City Hall to the effect that the same Guidelines do not apply to the old square. As a result, the old square was subject to the administration under the Guidelines for the Administration of the Square.
The Guidelines for the Administration of the Square stipulated that "the square in front of City Hall shall be provided for the use by the residents of the City during the time from 8:00 AM to 9:00 PM in principle to the extent no detriment exists for the execution of affairs or activities of the City." (Article 3). The above is considered to purport the position of the old square as a square provided for free use by the residents of the city to the extent that no detriment exists for the execution of affairs or activities of the appellee. In other words, it is considered that the old square was provided for use by the general public as a property for public use, distinguished from the building, etc. that is used as the main office of the appellee (public property). It should be considered that "detriment . . . to the execution of affairs or activities of the City" as set forth in Article 3 of the Guidelines for the Administration of the Square means the case in which the old square is destroyed or damaged, the execution of affairs or activities of the appellee is disturbed by noise, vibration, or other things, the free use by the general residents of the City, for which the old square is provided in principle, is substantially obstructed by its exclusive use for many hours, and traffic is obstructed by the participants overflowing into the adjacent roads on occasions with many participants.
(B) Thereafter, the Rules were established on September 30, 2011, and accordingly, the Guidelines for the Administration of City Hall seemed to have been abolished. The Rules did not clearly stipulate that the old square was not subject to the Rules. In this regard, if the former principle was changed by the Rules and the purport of such change was that the old square became subject to the Rules as well as the building, etc. that is used as the main office of the appellee, the Guidelines for the Administration of the Square should have also been abolished when the Guidelines for the Administration of City Hall were abolished at the time of the establishment of the Rules. However, the Guidelines for the Administration of the Square continued to exist. Judging from this fact, it should be considered that, although being the site of the building used as the main office of the appellee, the old square came to constitute a property for direct public use and was excluded from City Hall, etc., which is subject to the administration under the Rules (Article 2 of the Rules), and the Guidelines for the Administration of the Square continued to apply to the old square.
(C) Furthermore, thereafter, repair work on the old square commenced in fiscal year 2015, and after the repair work had finished, the Square commenced being provided for use on March 21, 2017, and Article 5, item (xii) and Article 6, paragraph (1) of the Rules were amended as of the same date. However, it is considered that the purport of this amendment was to make the prior operation of the Rules clear and that it is not a substantial amendment. In addition, as Article 2 of the Rules was not amended, "City Hall, etc." as set forth in the article does not include "a property to be provided for direct public use" even after the said amendment.
However, it seems that the Square was prepared for the purpose of being used as a place for relaxation for the residents of the city, more so than before. In actuality, the Square is being used with permission (see also No. 1, 3 (1) of the majority opinion) for assemblies, etc., which does not conform to, if the Rules apply, the rule that "bringing in flags, banners, placards, standing signboards, etc." is prohibited in principle (Article 5, item (iii)).
Furthermore, the Square is not a square "in" City Hall but a square "in front of" City Hall, and although it is adjacent to City Hall, it is not enclosed by a wall or fence. It is a flat space with a length of 60 meters from north to south and 50 meters from east to west and its name contains "square." It seems from these facts that, although the Square is a facility partly expected to be provided for the comings and goings of visitors and officials to City Hall, as the judgment in prior instance states, it is not considered to be the main purpose of the facility.
Judging from the above, it can hardly be said that the Square has lost its essence as a property for public use.
(D) Consequently, it is considered that the Square is not included in the "City Hall, etc." set forth in Article 2 of the Rules and is subject to Article 244 of Local Autonomy Act as a public facility or the Article applies by analogy to the Square as a facility equivalent to a public facility.
On the basis of the consideration mentioned above, the appellee should have established an ordinance concerning the provision and administration of the Square (Article 244-2, paragraph (1) of Local Autonomy Act). However, such ordinance has not been established concerning the Square. However, whether or not it is a public facility should be determined not only by the subjective intention of the provider but also by taking into consideration the structure of the facility and the actual situation of utilization. Therefore, such determination should not depend on the fact that the ordinance mentioned above has not been established.
B. In this regard, the judgment in prior instance held that, in the dichotomy of public property and property for public use, since the Square is part of City Hall, etc., it does not constitute a public facility as property for public use.
However, I would like to point out that, even if the Square is included in City Hall in a broad sense, the Square can be interpreted as being a property for public use and the consideration in A mentioned above is not affected.
In the first place, public property and property for public use cannot be always clearly distinguished. When one says the word "office building," that term covers various buildings from those of the Imperial Household Agency, which few citizens visit, to those of municipal branch offices issuing copies of resident records and transcripts and extracts of family registers, which is used by residents on many occasions. Public schools are often categorized as property for public use. However, as school facilities are intended for the education of the students of such school and cannot be used freely by people other than the teachers, officials, or students of the school, public schools differ greatly in nature from property for public use, such as roads and parks, which can be used freely by anyone. In this way, the natures of public property and property for public use differ in gradation. It is questionable to interpret their nature by using a simple dichotomy as a measure of interpretation.
In addition, public properties become widely used as properties for public use with restrictions on place and time. For example, a building used as an office building opens an observation deck on its top floor to the public. In this case, the top floor should be property for public use rather than a public property. Also, there has been attempts to open to the public with restrictions on the place and time a property for public use whose users are limited. As for the facilities of public schools, it has become not uncommon to open the schoolyard to the public only on holidays. In this case, the schoolyard on a holiday performs the same function as that of the park. As in the examples mentioned above, even public properties and properties for public use whose users are limited may, by stipulating certain spaces and times, become properties for public use that are widely available to the general public.
It can also be considered that the office building (in a broad sense) containing the Square has been used as a property for public use by limiting the space to the Square, on holidays, and to the extent that public services of the City are not disturbed by noise etc.
For the reasons described above, the logic that public properties can be used only as public properties is not in conformity with the actual situation of the administration. It is difficult to agree with the premise that the Rules apply to the Square without fully considering the actual situation of the use of the Square, etc.
(2) Conclusion of the determination on the reasons for the final appeal mentioned above
According to the above, as there is no room for the Rules to apply to the Square, counsel's arguments concerning the reasons for the final appeal mentioned above lack its premise, and none of these reasons constitutes ground as set forth in Article 312, paragraph (1) and paragraph (2) of the Code of Civil Procedure.
2. Consideration by the authority
On the basis mentioned above, in light of the facts of this case, I further consider by the authority whether reasons for the judgment in prior instance to be quashed exist.
As the Square in nature is a public facility, and its use for assembly is in conformity with the purpose thereof, in this case, whether "just cause" as set forth in Article 244, paragraph (2) of the Local Autonomy Act exists should have been determined in accordance with the standards as shown in the judgment of the Third Petty Bench of the Supreme Court of March 7, 1995 (1989 (O) 762, Minshu Vol. 49, No. 3, at 687) (hereinafter referred to as the "Supreme Court Judgment of Izumisano City Community Hall Case"). Accordingly, I consider, concerning the disposition made by the Mayor of Kanazawa City on April 14, 2017, to the effect not to give permission regarding the application filed by the Appellant Association for permission as set forth in Article 6, paragraph (1) of the Rules (in this dissenting opinion, referred to as the "Disposition of No Permission"), whether there is room to say any "just cause" exists in light of the standards mentioned above. As it is considered that there has been no standard for review as to the application for permission to use the Square after the Guidelines for the Administration of the Square were abolished, there is no other way but to determine on a case-by-case basis the existence of "just cause" as set forth in Article 244, paragraph (2) of the Local Autonomy Act.
On the basis of the holding of Supreme Court Judgment of Izumisano City Community Hall Case, it should be considered that, in order for the "just cause" for not permitting an assembly at a public facility to be found, the importance of guaranteeing freedom of assembly must be surpassed by the necessity of avoiding and preventing the risk of harming the life, body, or property of persons and undermining public safety, and as for the degree of such risk, the mere probability of the occurrence of a dangerous situation is insufficient; the occurrence of a clear and imminent danger must be specifically foreseen.
The application mentioned above was for permission to hold an assembly for the 70th anniversary of the enforcement of the constitution on May 3, 2017, from 12:00 to 14:00 (the Assembly lasted about 30 minutes from 13:00 to 13:30) with approximately 300 participants. It is considered that there is no reason not to permit it in regard to the number of participants, as the number of approximately 300 does not seem to exceed the capacity of the Square nor physically obstruct the Square. Actually, the appellee did not argue that an obstruction was physically caused by the Assembly. Also, as the Assembly was scheduled to be held on a national holiday, the performance of affairs of the appellee would not be affected.
Furthermore, the appellee did not argue that there were examples of complaints or protests actually made to the appellee in the past for the reason that an assembly for the purpose of making an appeal for a specific policy at the Square was permitted. The risk of complaint or protest to the appellee for permitting the Assembly is not a concrete risk on the basis of past examples.
In conclusion, the sole reason for not permitting the use of the Square for the Assembly is that, if the Assembly were to be permitted, residents of the city who think that the appellee supports the content of the Assembly or benefits the organizer of the Assembly would doubt the neutrality of the appellee, and protest or behave in a non-cooperative way toward the appellee, and as a result, there may be an abstract risk of detriment to the affairs or activities of the appellee. However, as follows, since such reason cannot be considered to be a "just cause," I would have to say that the Disposition of No Permission is illegal, and the determination by the court of prior instance that differs from the above contains the illegality of erroneous interpretation and application of Article 244 of the Local Autonomy Act and a violation of laws and regulations that has clearly influenced the judgment. The judgment in prior instance should inevitably be quashed.
(1) Although it is a matter of course that the execution of laws by public employees of regular service requires political neutrality, the head and local assembly members were elected by pledging the realization of specific policies in their election campaigns, and the policies planned and implemented by the mayor or local assembly members cannot be politically neutral. Also, the various residents of the city have various opinions. It is a matter of course that there must be residents who are distrustful of the policies of the appellee, and there may be residents who protest the appellee or feel unwilling to cooperate with the appellee. However, the existence of such residents who are critical of the policies of the appellee and who actually criticize the policies of the appellee can be said to be a phenomenon that occurs in sound democratic states and should not be interpreted in a negative light. If any such resident raises an aberrant protest or disrupts the affairs or activities of the appellee, of course, the appellee will have no choice but to take measures, including filing a civil suit or seeking prosecution with the assertion that such an act constitutes crimes of refusal to leave, forcible obstruction of business, obstruction of performance of public duty, etc. However, not to permit the use of the Square and to restrict the freedom of assembly thereby for the reason that such an extreme case may exist in the abstract is, I would have to say, a cure that is worse than the disease.
(2) Concerning events co-sponsored or sponsored by the appellee as well, the possibility that there is a resident who doubts the neutrality of the appellee and complains or protests to the appellee cannot be denied. However, if the appellee should not carry out such actions as may cause such a situation, the appellee should not co-sponsor or sponsor any event, nor permit any assembly whatsoever. It would be a matter of course that such a conclusion is unreasonable. This indicates that it should be said that the Disposition of No Permission for the abstract reason that there is a possibility that an unspecified person would doubt the neutrality of the appellee lacks just cause.
(3) Even if permission were given to hold the Assembly in a facility which is evidently a public facility, such as a community hall, the possibility exists there as well in the abstract that any resident could complain or protest to the appellee out of the misunderstanding that the appellee supports the message delivered at the Assembly. It may be said that the misunderstanding that the appellee supports such a message could more easily occur if the Assembly were to be held in a community hall, which is evidently a facility of the appellee, than if it were held at the Square, which has no wall or fence and is connected to the outside by roads.
However, concerning the permission to use a community hall which is evidently a public facility, it would be clear, in light of the purport of Supreme Court Judgment of Izumisano City Community Hall Case and the judgment of the Second Petty Bench of the Supreme Court of March 15, 1996 (1993 (O) 1285, Minshu Vol. 50, No. 3, at 549, "Judgment of Ageo City Welfare Center Case"), that the Disposition of No Permission for such reason is not allowed as it violates Article 244, paragraph (2) of the Local Autonomy Act.
The above deepens my question as to why the reason which is not allowed to refuse permission in regard to the Assembly in a community hall can be the reason for not granting permission for it to be held at the Square when the Square has been provided for the free use by the residents and assemblies have been permitted to be held there on a number of occasions.
3. Preliminary Opinion
My opinion concerning this case is as above. For the record, I add a preliminary consideration on the basis of the interpretation of the majority opinion that the Rules apply to the Square. On the basis of that interpretation, still it follows that applying the Provision to the acts pertaining to the Assembly at the Square violates Article 21, paragraph (1) of the Constitution for the following reasons based on the so-called Public Forum Doctrine (which comes to a conclusion different from that of No. 2 of the majority opinion), and consequently, the Provision cannot be invoked as a reason for non-permission concerning the Assembly at the Square. In that case, as I would have to say that the determination by the court of prior instance contains the illegality of erroneous interpretation and application of the Constitution and a violation of laws and regulations that has clearly influenced the judgment, the judgment in prior instance should inevitably be quashed.
In light of the form, location, and actual situation of the use as mentioned above, the Square can be said to have the substance of a public forum. Not to permit an assembly at a public forum due to the content of the speeches which are likely to be made at the assembly is prior restraint against freedom of speech. Therefore, unless there is a clear likelihood that the assembly is being held for the delivery of hate speeches or that crimes such as defamation or slander will be committed against a specific person, it should not be allowed in principle. As mentioned above, if the appellee regulates an assembly for its content, the appellee has to prove that an unavoidable benefit exists and the measures to achieve the benefit are limited to the extent reasonable for achieving the purpose. However, if non-permission due to such an abstract detriment as the Rules may assume (see No. 2, 1 of the majority opinion) is allowed, it may result in allowing "discrimination by opinion" depending on the political beliefs of the mayor at that time. Even If the detriment as set forth in the Rules is proved to occur, it cannot be said that an unavoidable benefit has been proved by the appellee. Actually, judging from the situation of the determination on the application for the permission for assemblies at the Square (see No. 1, 3 (1) of the majority opinion), I would have to say that there seems to be no consistency in the operation as to whether permission is given to an assembly that aims to make an appeal for a specific policy. From the above, it is feared that this may cause "discrimination by opinion" mentioned above.
Freedom of assembly is originally expected to form the free marketplace of ideas through the free circulation of various opinions on the basis of the confidence in the autonomous decisions of citizens who receive the information. It seems difficult to justify the restrictions on the freedom of assembly guaranteed by Article 21 of the Constitution that are made by providing highly paternalistic regulation based on the assumption that the residents in general will misunderstand that the appellee itself co-sponsors or sponsors the content of the assembly and not be satisfied with the explanation made by the appellee when visiting residents to explain, and will protest the appellee or become non-cooperative with the appellee and cause detriment to the affairs or activities of the appellee.
4. Conclusion
As mentioned above, in either my opinion that the Square falls into the category of public facility or based on the understanding of the majority opinion that the Rule applies to the Square, the judgment in prior instance should inevitably be quashed. Furthermore, it is reasonable that this case be remanded to the court of prior instance for further examination as to its unlawfulness under the State Redress Act and the amount of damage, etc.

Presiding Judge

Justice NAGAMINE Yasumasa
Justice UGA Katsuya
Justice HAYASHI Michiharu
Justice WATANABE Eriko
Justice IMASAKI Yukihiko

(This translation is provisional and subject to revision.)