I have written about many maddening lawsuits at Popehat. But I cannot remember a lawsuit that so immediately repulsed and enraged me.
During the Second World War, the Empire of Japan sexually enslaved women — at least tens of thousands, and perhaps hundreds of thousands — to be raped by its troops. They were forcibly seized from the countries Japan occupied, primarily Korea. Though Japan officially apologized in 1993, in recent years right-wing forces in Japan have been seeking to retract those apologies, asserting that the enslaved women were actually voluntary prostitutes, or that the Empire itself wasn't involved in any coercion. This attempted walkback can best be understood in the broader context of Japanese nationalist politics, in which right-wing politicians play to their base by doing things like visiting shrines honoring war criminals.
Now Japanese-American plaintiffs, served by American megafirm Mayer Brown, are pursuing the agenda of reactionary Japanese politicians through despicable litigation.
Glendale, California is a suburb of Los Angeles. I grew up next door and still live there. It's incredibly diverse with many thriving ethnic communities. In 2013 the City of Glendale erected a modest memorial to the comfort women of World War II in a public park next to the library. Japanese politicians were enraged and have repeatedly demanded that the memorial be removed. The federal lawsuit filed by Mayer Brown seeks to have the memorial removed by force of law.
The plaintiffs in the lawsuit — which I have uploaded here — are Glendale resident Michiko Shiota Gingery, Los Angeles resident Koichi Mera, and GAHT-US Corporation, which says it is in the business of providing "accurate and fact-based educational resources to the public in the U.S., including within California and Glendale, concerning the history of World War II and related events, with an emphasis on Japan’s role." The plaintiffs complain that the presence of the comfort women memorial in Glendale causes them to suffer "feelings of exclusion, discomfort, and anger because of the position espoused by her city of residence through its display and endorsement" of the monument, and that they avoid the park because it shows a "pointed expression of disapproval of Japan and the Japanese people" and diminishes their enjoyment of the park. Though the lawsuit discusses a controversy over what the Empire of Japan did to women in the war, the complaint unsubtly conveys a position: "These women are often referred to as comfort women, a loose translation of the Japanese word for prostitute."
Plaintiffs argue in part that the City of Glendale did not follow its own rules in approving the exact language on the memorial. But their primary argument — the most shocking one — is that the City of Glendale cannot erect such a memorial because it violates the Supremacy Clause of the U.S. Constitution and interferes with the federal government's sole right to conduct U.S. foreign policy.
Glendale’s installation of the Public Monument has a direct impact on U.S. foreign policy that is neither incidental nor indirect. By installing the Public Monument, Glendale has taken a position in the contentious and politically sensitive international debate concerning the proper historical treatment of the former comfort women. More specifically, given the inflammatory language used in the plaque that is prominently featured alongside the statue, Glendale has taken a position at odds with the expressed position of the Japanese government.
Though the plaintiffs make this argument about the comfort women memorial in Glendale, it is nearly limitless in its application. For instance, though this fight is over a memorial, it could just as easily be about a city council resolution recognizing a day to remember some historical event. Similarly, though this fight is about the agenda of reactionary Japanese forces that seek to suppress discussion of wartime conduct, it could just as easily be about a hundred other historical disputes. If you think that's mere speculation, think again. Glendale, California and the surrounding communities are also home to one of the largest Armenian diaspora groups in the United States. Will Mayer Brown next be suing to force the removal of memorials to the Armenian Genocide, or to prohibit city councils from recognizing it, because it is extremely controversial to apologist forces in Turkey? Given the delicacy of U.S. relationships with the new government of Afghanistan, will someone use the federal courts to police the language of civic war memorials and commemorative statements across the nation, to make certain that they portray the Afghans as our allies?
This is not a First Amendment issue, exactly, because government entities don't have First Amendment rights. But it is an issue of federalism, of local self-determination, and of citizenship. Local citizens, through their local elected government, wished to recognize a historical atrocity using local government money on local government land. Their city did not purport to engage in negotiation with any foreign government or to take any position on behalf of the United States — they just took a position on behalf of its citizens. They did not do anything prohibited by the Constitution, like establishing a state religion. The notion that the federal government or the federal courts should regulate this expression is noxious.
Moreover, the argument against it is vague, unprincipled, and endlessly malleable. If a case like this succeeds, what will the courts say to a Holocaust denier who argues that a memorial is too harsh in condemning Germany, a nation with whom we have dicey relations? The plaintiffs here might argue that the difference is that recognition of the Holocaust isn't controversial and wouldn't anger most Germans, while the comfort women issue has angered Japanese politicians. But that's just another way of saying that foreign politicians should be able to dictate what American towns put on their civic memorials. The more that foreign politicians are willing to make demands and issue denunciations, the less free American towns would be to commemorate historical events. This would drive exactly the sort of entitled, thuggish behavior that Japanese politicians have shown here, issuing churlish demands that a foreign city shut up about their nation's history.
This lawsuit is thoroughly contemptible. It should fail, and everyone involved should face severe social consequences.
Edited to add: It occurred to me what this reminded me of: Croat lawfare trying to get Bob Dylan charged with hate speech for talking about Croat atrocities.
Last 5 posts by Ken White
- A Response To Marc: Institutions, Agendas, and the "Culture War" - January 13th, 2016
- Lawyering Is About Service, Not Self-Actualization - January 11th, 2016
- Lawsplainer: Was FAU Prof. James Tracy Fired in Violation of His First Amendment Rights? - January 7th, 2016
- Defy, Defy, Defy. - January 7th, 2016
- President Obama And The Rhetoric Of Rights - January 5th, 2016