CULTURE, COMMERCE, AND THE CONSTITUTION: LEGAL AND EXTRA- LEGAL RESTRAINTS ON FREEDOM OF EXPRESSION IN THE JAPANESE PUBLISHING INDUSTRY James J. Nelsont I. OVERVIEW Culminating a quarter-century of research on freedom of ex- pression in Japan, Lawrence Beer recently wrote: Each constitutional democracy is a partially open, partially closed, coherent whole, operating according to a sometimes subliminal consensus about what should be done for survival, success, and adherence to national values. Each constitutional culture nurtures, protects, regulates, and represses freedom of expression in ways often determined more by its own rules and customs than by law, government institutions, or abstract ideal. Freedom lives or dies in the interplay between public and private sectors. 1 Beer's statement implies that analysis of legal formalities alone will not result in an accurate picture of the significant forces at work in a constitutional society's attempt to delimit publishing freedoms. One must look to both public factors, i.e. laws, their enforcement and judicial interpretation, and private factors, i.e. social, economic, and cultural practices, in order to assess the boundaries of acceptable expression.. It is not uncommon to encounter enthusiastic appraisals such as Japan possesses one of the most emancipated press sys- t A.B., East Asian Studies, Princeton University, 1976. J.D., William S. Rich- ardson School of Law, University of Hawaii at Manoa, 1996. The author wishes to thank Professor Alison W. Conner for her support and encouragement, and Yamaguchi Jiro of Magazine House Ltd., Tokyo, Japan for his valuable assistance in providing research materials. Translations are the author's own unless otherwise noted. Japanese names are given surname first unless the source cited provides otherwise. 1. Lawrence W. Beer, Freedom of Expression: The Continuing Revolution, in JAPANESE CONSTIrUTIONAL Takahashi eds., 1993). LAW 221, 245 (Percy R. Luney, Jr. & Kazuyuki