© Nova univerza, 2018 DIGNIT AS Revija za človekove pravice Slovenian journal of human rights ISSN 1408-9653 Politics and Ideology Beyond the Law of Free Speech Cao Xinglong Article information: To cite this document: Xinglong, C. (2018). Politics and Ideology Beyond the Law of Free Speech, Dignitas, št. 55/56, str. 47-87. Permanent link to this doument: https://doi.org/ 10.31601/dgnt/55/56-4 Created on: 07. 12. 2018 To copy this document: publishing@nova-uni.si For Authors: Please visit http://revije.nova-uni.si/ or contact Editors-in-Chief on publishing@nova-uni.si for more information. This work is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License. 47 DIGNITAS n Politics and Ideology Beyond the Law of Free Speech Laws alone cannot carry themselves into practice. --- MENCIUS, “LI LOU” (THE FIRST HALF) Introduction 1 Like in the USA, Chinese law claims to protect its people’s fre- edom of expression. But the Chinese Government has always been condemned to crush the citizens’ rights of free speech, whi- ch is opposite to the Government’s manifesto that it only inten- ds to curb the evil effects of illegal voices rather than to censor the content. China believes that, the same as with Western coun- tries, it has an ‘independent judicature’ to carry out the ‘rule of law’ 2 that regulates illegal speech, rather than the Government ad arbitrium dealing with political criticism by dissidents. 3 Liu Xia- 1 School of law, City College of Zhejiang University, xinglongcao@yahoo.com. 2 For example, Qin Gang, a speaker of the Ministry of Foreign Affairs of the PRC, expostulated that no one should intervene in China’s “rule of law” and “independent judicature” when he was asked about the espionage and bribery case against Rio Tinto PLC underway in China, 2009 Nian 7 Yue 16 Ri Waijiaobu Fayanren Qin Gang Jüxing Lixing Jizhehui [Routine Press Conference of the Ministry of Foreign Affairs [RPC] by Speaker Qin Gang, on July 16, 2009], FMPRC.GOV.CN (July 16, 2009), http:// www.fmprc.gov.cn/chn/pds/wjdt/fyrbt/t573518.htm. 3 For example, the State Council Information Office of the PRC [SCIO] issued a Chinese Internet Re- port on June 8, 2010 which stated that the Government had implemented statutes such as the National People’s Congress [NPC] Standing Committee’s [SC] Decision on Safeguarding Internet, Regulations on Telecommunications of the PRC and Regulations on the Internet Information Service to crack Politics and Ideology Beyond the Law of Free Speech Cao Xinglong Editor’s note : We were unable to fully verify the identity of the author of this article, and it should thus be regarded as written by ‘anonymous’. However, given the nature of the claims made in the article about the possible repercussions for those expressing views contrary to the Chinese state, we have decided to publish the article anyway. 48 DIGNITAS n Pravo človekovih pravic obo, the Nobel Peace Prize Laureate of 2010, was sentenced to 11 years’ imprisonment and deprived of his political rights for two years on December 25, 2009 for his libelling and abetting to sub- vert the Communist Party of China [CPC] and the Government under its leadership by publishing defamatory articles on the In- ternet. 4 Confronting internal and outside pressure to acquit Liu, 5 the Chinese Government officially proclaimed that according to international standards Liu is a common criminal rather than a po- litical prisoner, 6 which is conventionally read as political rhetoric by commentators. But when some legal scholars provide expert testimonies to the conviction of Liu, a canonical academic law-do- gma emerges as to whether Westerners are criticising the Chinese Government by wielding a “Double-Standard” stick on the issue of freedom of expression. Gao Mingxuan, the most authoritative criminal law professor in China, 7 expressed his supporting view down on information that impinge on public or private interests, Guowuyuan Xinwen Bangongshi [SCIO], ZHONGGUO HULIANWANG ZHUANGKUANG [CHINESE INTERNET REPORT] (June 8, 2010), available at http://www.gov.cn/zwgk/2010-06/08/content_1622866.htm; Guayu Weihu Hulian- wang Anquan de Jueding [Decision on Safeguarding the Internet] (promulgated by NPCSC Dec. 28, 2000, effective Dec. 28, 2000) 2001 NPCSC GAZ. 18; Dianxin Tiaoli [Regulations on Telecomm.] (pro- mulgated by the St. Council, Sep. 25, 2000, effective Sep. 25, 2000) 2000 [33] ST. COUNCIL GAZ., 11, translated in LAWINFOCHINA; Hulianwang Xinxi Fuwu Guanli Banfa [Regulations on Internet Info. Serv.] (promulgated by the St. Council, Sep. 25, 2000, effective Sep. 25, 2000) 2000 [34] ST. COUNCIL GAZ., 7, translated in LAWINFOCHINA. 4 Liu Xiaobo Shandong Dianfu Guojia Zhengquan An [In re Liu Xiaobo Sedition to Subvert the Go- vernment] (Beijing 1st Interm. People’s Ct. Dec. 25, 2009), WIKISOURCE.ORG (Aug. 26, 2011), http:// zh.wikisource.org/zh-hans/%E5%88%98%E6%99%93%E6%B3%A2%E4%B8%80%E5%AE%A1%E5%8 8%A4%E5%86%B3%E4%B9%A6. And Liu’s appeal was dismissed on Feb. 11, 2010, Liu Xiaobo Shan- dong Dianfu Guojia Zhengquan An [In re Liu Xiaobo Sedition to Subvert the Government] (Beijing High People’s Ct. Feb. 11, 2010), BULLOGGER.COM (Feb. 16, 2010 3:33 AM) http://www.bullogger. com/blogs/stainlessrat/archives/352866.aspx. 5 Political dissidents and free speech advocates in China celebrated Liu as the winner of the Nobel Peace Prize, Wu Yu, Huojiang Zhihou: Liu Xiaobo Jia Bei Fengsuo, Zifa Qingzhuzhe Beizhua [After Winning the Nobel Peace Prize, Liu Xiaobo’s Home Was Tightly Picketed by the Police and Volun- tary Celebration Activists Were Arrested around There], DW-WORLD.DE (Oct. 8, 2010), http://www. dw-world.de/dw/article/0,,6095659,00.html; RTF, A Chinese College Student Is So Brave to Unfurl a Banner to Celebrate Liu Xiaobo’s Nobel Peace Prize, NAOL.CA (Dec. 10, 2010), http://www.naol.ca/ news/world/1012/1210-8.htm. Exiled dissidents and foreign politicians have campaigned for Liu’s freedom, Lu Yang, Guoji Shehui Jixu Shengyuan Liu Xiaobo [International Society Continues Su- pport for Liu Xiaobo], VOA-NEWS (Dec. 8, 2010, 1:09 AM GMT), http://www.voanews.com/chinese/ news/20101208-China-Jail-Liu-Xiaobo-111516989.html. 6 For example, Jiang Yu, a speaker of the Ministry of Foreign Affairs of the PRC, announced such an assertion, 2010 Nian 12 Yue 9 Ri Waijiaobu Fayanren Jiang Yu Jüxing Lixing Jizhehui [R.P.C. by Spe- aker Jiang Yu, on Dec. 9, 2010], FMPRC.GOV.CN (Dec. 9, 2010), http://www.fmprc.gov.cn/chn/gxh/ tyb/fyrbt/jzhsl/t775713.htm. 7 In China, people often rank legal scholars for their achievements in light of the academic titles they earn from the Government. According to his resume on the website of the Renmin University of China, School of Law, Professor Gao Mingxuan has been conferred with the following titles: 1. Vice Chairman of the National Law Society; 2. Honorary Chairman of the Criminal Law Society (an institution affiliated with the National Law Society); 3. Honorary Chairman of the Beijing Law Society; 4. Commissioner of the Advisory Committee for the Supreme People’s Procuratorate of the PRC; 5. Special Consultant for the Supreme People’s Court of the PRC; 6. Convener of Meetings of the Legal 49 DIGNITAS n Politics and Ideology Beyond the Law of Free Speech of Liu’s conviction in an interview (Experts Talk About Liu’s Case of Sedition) on the official Zhongpingshe on Feb. 11, 2010, 8 and in another one (It Is Misunderstanding to Read Liu’s Case as Crimi- nating a Person for His Latitude) on Xinhua-Net on Oct. 25, 2010. 9 Professor Gao found that Liu’s conviction was in line with the In- ternational Covenant on Civil and Political Rights, and was even enlightened by and in accord with the principles of US law. 10 Part I of this article will examine the law of free speech in both the USA and China and the fact that, like in the USA, the Constitu- tion and other statutes of China proclaim strong protection for la- titude. Part II analyses the “idea market” as the mechanism of free speech being immanently genial to democratic politics. The Chi- nese Government, although claiming its rules a better democracy than the USA, is in actuality autocratic, cannot abide criticism bro- adly resonated in the “idea market” for fear of such democratic speech’s outgrowth of political democratisation and the death of the dictatorship, and so political debate is strictly censored. Part III show that dysfunctions of the “idea market” always delay the process of finding the truth and are a detriment to the important values people cherish, provoking governmental regulation, parti- Education Supervisory Board of the Academic Degrees Committee of the State Council; 7. The first Ph.D. Supervisor in Law Approved by the Academic Degrees Committee of the State Council; 8. Ho- norary First Grade Professor approved by the Renmin University of China; 9. Honorary Chairman of the Research Centre of Criminal Jurisprudence of the Renmin University of China, Gao Mingxuan [Resume of Gao Mingxuan], LAW.RUC.EDU.CN, http://law.ruc.edu.cn/introduction/shizi3.asp?No=73 (last visited Sep. 14, 2011). Regarding Titles 1, 2 and 3, because law societies in China are essentially government academic organisations other than self-claimed civil ones and ranked high up in the political hierarchy (for example, the current Chairman of the National Law Society is Han Zhubin, the former Deputy Secretary of the CPC Disciplinary Committee and Procurator-General of the Supreme People’s Procuratorate; the current Chairman of the Beijing Law Society is Wang Anshun, the No. 1 Deputy Secretary of the CPC Beijing Municipal Committee and Chairman of the Beijing Municipal Committee of the Chinese People’s Political Consultative Conference), Gao’s positions are quite influ- ential in the Chinese legal community. See Zhongguo Faxuehui Zhangcheng [Chinese Law Societies Constitution], CHINALAW.ORG.CN (Jan. 14, 2010, 4:25 PM), http://www.chinalaw.org.cn/Column/ Column_Template4.aspx?ColumnID=107; Zhongguo Faxuehui Jianjie [Introduction to the Chinese Law Society], CHINALAW.ORG.CN (Jan. 14, 2010, 2:45 PM), http://www.chinalaw.org.cn/Column/ Column_Template4.aspx?ColumnID=106; Introduction to Leaders of the Beijing Law Society, BJFXH. ORG.CN, http://www.bjfxh.org.cn/fxwww/xhjs/XhjsWebsiteAction.do?action=xhldview&lo=xhjs5 (last visited Sep. 14, 2011). Titles 4 and 5 are tied to powerful government branches. Title 6 is regar- ded as the highest rank in the administration of legal education and academics. Titles 7, 8 and 9 are great honours for a legal scholar. 8 Zhongpingshe, Zhuanjia Tan Liu Xiaobo Shandong Dianfu Guojia Zhengquan An [Experts Talk About Liu’s Case of Sedition], ZHGPL.COM (Feb. 11, 2010, 5:42 PM) http://www.zhgpl.com/ doc/1012/2/8/1/101228132.html?coluid=7&kindi. 9 Xinhuawang [Xinhua-Net], Suowei “Yinyanhuozui” Shi Dui Liu Xiaobo An Panjue de Wudu [It Is a Misunderstanding to Read Liu’s Case as Criminating a Person for His Latitude], XINHUANET.COM (Oct. 25, 2010, 2:26 PM) http://news.xinhuanet.com/world/2010-10/25/c_12698346.htm. 10 Zhongpingshe, supra note 7, para. 3, sentence 4; Xinhua-Net, supra note 8, para. 5, sentence 10, and para. 8. 50 DIGNITAS n Pravo človekovih pravic cularly for foreign unwelcome ideas. The variance of the scopes of the freedom of speech in US history supports such a conclusion. While in China, governmental propaganda intentionally exagge- rates this fault of the speech mechanism and incites nationalism against any exotic democratic ideology, the distorted “markets” of politics, the economy, education and speech etc. under the tota- list regime compel people to deeply experience the unfairness of “Chinese-style” marketisation to establish an anti-democracy ideology. So people can, with rare odds, self-consciously nurse a candid “idea market” for political debate, or even for non-political argument, independent of governmental tampering and to peace- ably transform the Government. Part IV concludes that the Chine- se Government by garbling doctrines of speech regulation in the USA and by sophism, such as the “Chinese type of dictatorship is a new form of democracy”, tries to justify its dictatorial restriction on the freedom of expression. I. Law of Free Speech The First Amendment of the US Constitution guarantees the people’s freedom of expression: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people pea- ceably to assemble, and to petition the Government for a redress of grievances.” While common law circumscribes some speech to contain its evil secondary effect, it concerns the damage incurred by the me- thod of speech rather than the idea itself. In Los Angeles v. Ala- meda Books, Inc., Justice Kennedy made a clear discrimination between a speech’s content and its secondary effect: Speech can produce tangible consequences: It can chan- ge minds. It can prompt actions. These primary effects si- gnify the power and the necessity of free speech. Speech can also cause secondary effects, however, unrelated to the impact of the speech on its audience. A newspaper factory may cause pollution, and a billboard may obstruct a view. 11 11 Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 444 (2002) (Kennedy, concurring). 51 DIGNITAS n Politics and Ideology Beyond the Law of Free Speech If the information communicated in a speech could attract a conviction for its inciting effect to incense someone or excite him to undertake some contravention, then the freedom of expression would be rendered void because little speech can appease every listener or teach people to do the right things without detriment to anyone. On the contrary, if any act, such as “a gigantic fireworks display or a parade of nude models in a public park” to “draw even more attention to a controversial message”, and “the com- municative value of a well-placed bomb in the Capitol”, 12 should be protected for its expressive connotation even though it causes damage to people, then no human behaviour can be punished because, as body language, it can unleash some of the actor’s me- anings at the same time. But discerning the so-called ‘secondary effects’ from the ‘content’ is always difficult. In United States v. O’Brien, the Supreme Court legalised a sta- tute that criminated O’Brien for publicly burning his draft card to demonstrate his opposition to the war; 13 the reason was that it pro- hibited any acts (public or private) that intentionally impinged on the governmental interest of assuring the availability of the draft card rather than to bridle the latitude of anti-war. 14 On the con- trary, the Court in Flag Cases nullified Flag Protection Laws that punished persons who defied the image of the flag because the symbol of the flag as an incarnation of the national spirit was only denigrated by those profane acts for their protective communica- tive impacts on an audience. 15 However, some speech was restricted for its so-called seconda- ry ill-effect that was suspected of being a communicative fallout. In Renton v. Playtime Theatres, Inc. and Los Angeles v. Alameda Books, Inc., the Supreme Court validated a “zoning ordinance” to disperse adult entertainment for the limitation of secondary ef- fects such as increased crimes and a devalued adjacent property. 16 The Court spared its effort to make it clear that if the secondary evils that “concentrations of adult businesses are associated with higher rates of prostitution, robbery, assaults, and thefts in surro- 12 United States v. Eichman, 496 U.S. 310, 322 (1990) (Stevens, J., dissenting). 13 United States v. O’Brien, 391 U.S. 367 (1968). 14 Id. at 381-82. 15 United States v. Eichman, 496 U.S. 310 (1990); Texas v. Johnson, 491 U.S. 397 (1989). 16 Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002); Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986). 52 DIGNITAS n Pravo človekovih pravic unding communities”, 17 were in actuality entailed by the informa- tion of a pandering business. In addition, a handful of cases have intimated that courts do not prohibit regulations that target a speech’s communicative unwelcome impact in some particular settings, only if they did not over-inclusively squash the utterance everywhere. In Chaplinsky v. New Hampshire, the Supreme Court acknowledged a “public peace” statute of New Hampshire that convicted a man for using “fighting words” face to face that allegedly offended the compla- inant. 18 And in Morse v. Frederick, the Supreme Court legalised a public school discipline to punish a demagogic contravention that gave rise to a “risk of substantial disruption”. 19 Here, distinguishing trouble-making speech from all sorts of order-sustaining pretence and the latitude haven requires a balan- cing between acceptable and unacceptable words, i.e., to gauge the obligation and capacity of the audience’s tolerance for them case by case. For example, Chaplinsky listed “the lewd and obsce- ne, the profane, the libellous, and the insulting or ‘fighting’ words” as “no essential part of any exposition of ideas”, and “of such slight social value as a step to truth”; 20 some agree that “false fact” rather than a “false idea” should be imputable under defamatory laws be- cause the latter should be bearable even if you do not agree with the speaker; 21 some believe that “even advocacy of violation, ho- wever reprehensible morally, is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted on”. 22 But, by and large, these test standards themselves are murky and obfuscating when they are applied case to case. To save speech from too much regulation, it is said that de- famed “public officials and public figures” are prohibited from “recovering damages” unless they prove that “the statement was made with ‘actual malice’ – that is, with knowledge that it was false or with reckless disregard of whether it was false or not”, whereas “where such a statement involves a private figure on a matter of 17 Alameda, 535 U.S. at 430. 18 Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). 19 Morse v. Frederick, 551 U.S. 393 (2007). 20 Chaplinsky, 315 U.S. at 571. 21 Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990). 22 Whitney v. California, 274 U.S. 357, 376 (1927) (Brandeis, J., concurring), quoted in Morse, 551 U.S. at 438 (Stevens, J., dissenting). 53 DIGNITAS n Politics and Ideology Beyond the Law of Free Speech public concern, a plaintiff must show that the false connotations were made with some level of fault as required by Gertz”. 23 It is also argued that “political speech”, “at the core of what the First Amendment is designed to protect”, 24 is prioritised in the hi- erarchy of speech categories. In Morse, the Court became confi- dent to find against the student petitioner only when they found that “not even Frederick (the student petitioner) argues that the banner conveys any sort of political or religious message. ... this is plainly not a case about political debate over the criminalization of drug use or possession”. 25 And the preceding test of “advocacy of violation” 26 can be traced to the “clear and present danger” doc- trine, such as when the Schenck Court faced a challenge to convict “political speech” as “a conspiracy to obstruct the draft”. 27 , 28 The Constitution of PRC includes a free speech clause similar to the US First Amendment: “Citizens of P.R.C. enjoy freedom of speech, of the press, of as- sembly, of association, of procession and of demonstration”. 29 Although there is argument that Chapter II, Article 51, (“Citizens of P.R.C., in exercising their freedoms and rights, may not infringe upon the interests of the State, of society or of the collective, or upon the lawful freedoms and rights of other citizens”) limits the freedom in Article 35 to a narrower purview than in the US First 23 Milkovich, 497 U.S. at 14-16, 20-21 (reviewing New York Times Co. v. Sullivan, 376 U.S. 254 (1964); Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967); Rosenbloom v. Metromedia, Inc., 403 U.S. 29 (1971); Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974); Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986)). 24 Virginia v. Black, 538 U.S. 343, 365 (2003). 25 Morse, 551 U.S. at 402-03 (alteration in original). And the Court looked back to the “political ‘mes- sage’” and “sexual content” argument in Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675 (1986), id. at 404. 26 Supra note 21 and accompanying text. 27 Schenck v. United States, 249 U.S. 47 (1919). 28 See Edward J. Bloustein, Criminal Attempts and the “Clear and Present Danger” Theory of the First Amendment, 74 CORNELL L. REV. 1118, 1120 (1989). 29 XIANFA [Constitution] ch. II, art. 35 (1982), translated in LAWINFOCHINA. The present Constitu- tion of the PRC was enacted in 1982, and was later amended in 1988, 1993, 1999 and 2004; this Free Speech Clause was established in the 1982 version and has been kept intact since then. Before this Constitution, three Constitutions had appeared in the PRC, including the Constitution of 1954, the Constitution of 1975 and the Constitution of 1978 (amended in 1979 and 1980), all of which guarante- ed the freedom of speech, XIANFA ch. Ⅲ, art. 87 (1954) (“Citizens of speech PRC enjoy freedom of spe- ech, of the press, of assembly, of association, of procession and of demonstration. The State should provide material support for citizens to enjoy such liberties.”); XIANFA ch. Ⅲ, art. 28 (1975) (“Citizens of the PRC enjoy freedom of speech, of communication, of the press, of assembly, of association, of procession, of demonstration and of strike, … .”); XIANFA ch. Ⅲ, art. 45 (1978) (“Citizens of the PRC enjoy freedom of speech, of communication, of the press, of assembly, of association, of procession, of demonstration and of strike, and have the right to air one’s views freely, write big-character posters and hold great debates”. (The amendment of 1980 struck out the latter half of “and have the right to air one’s views freely, write big-character posters and hold great debates”). 54 DIGNITAS n Pravo človekovih pravic Amendment, in fact the freedom of expression in the latter is also so circumscribed in common law dogmas, even though the US Constitution lacks a limitation statute like China’s. Moreover, such a limitation in the Constitution of PRC is conventionally understo- od as providing no pretext to curtail the freedom of expression. 30 China also targets speech for its communicative ill effects, in- cluding defamation, 31 and libel laws discriminate subjective ideas of a speaker (protectable) against false facts and insulting words that incur defamation (punishable), to accommodate the free spe- ech clause in the Constitution: For critical writings, if the facts related to are basically ve- ritable and there are no insulting contents therein, charges of defamation against the authors cannot be established; if the facts related to are basically veritable but there are insul- ting contents therein that damage the accusers’ reputation, charges of defamation against the authors should be establi- shed; if the facts related to that damage the accusers’ repu- tation are basically untrue, although there are no insulting contents therein, charges of defamation against the authors should be established. 32 30 For example, International Covenant on Civil and Political Rights, Article 19 guarantees the freedom of expression as “[e]veryone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.” International Covenant on Civil and Political Rights, art. 19, para. 2, adopted and opened for signature, ratification and accession Dec. 16, 1966, http://www2.ohchr.org/english/law/ccpr.htm (entered into force Mar. 23, 1976) (alterati- on in original). And limitations on it are similar to those of the Constitution of the PRC, such as: Th e exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (order public), or of public health or morals. Id . para. 3. When the USA ratified the Covenant, it declared such limitations should not be read as a pretext for curtailing the freedom of expression, stating: Fo r the United States, article 5, paragraph 2, which provides that fundamental human rights existing in any State Party may not be diminished on the pretext that the Covenant recognises them to a lesser extent, has particular relevance to article 19, paragraph 3, which would permit certain restrictions on the freedom of expression. US A, Declarations: (2), June 8, 1992, http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_ no=IV-4&chapter=4&lang=en#EndDec. 31 See Minfa Tongze [General Principles of the Civil Law] (promulgated by the NPC, Apr. 12, 1986, effective Jan. 1, 1987) ch. 5, art. 101, [1986] 4 NPCSC GAZ. item 1 - 2, http://www.npc.gov.cn/wxzl/ gongbao/2000-12/04/content_5001770.htm, http://www.npc.gov.cn/wxzl/gongbao/2000-12/06/ content_5004470.htm, translated in LAWINFOCHINA (“Citizens and legal persons shall enjoy the right of reputation. The personality of citizens shall be protected by law, and the use of insults, libel or other means to damage the reputation of citizens or legal persons shall be prohibited.”). 32 Guayu Shenli Mingyuquan Anjian Ruogan Wenti de Jieda [Reply on the Trial of Cases Concerning the Right of Reputation] (promulgated by the Sup. People’s Ct., June 15, 1993, effective Aug. 7, 1993), Issue 8, 1993 Sup. People’s Ct. Gaz. 103. In China, the Supreme People’s Court can enact rules on 55 DIGNITAS n Politics and Ideology Beyond the Law of Free Speech Such a balance between free speech and defamation is akin to what happens in US common law. 33 And in China, only serious defamation within these two catego- ries of acts can be criminated. 34 Further, in practice, even if speech falls into the punishable two categories it can still be exempted from punishment if it is “acceptable internally spreading in an organizati- on” as defined in the Interpretation of the Supreme People’s Court on the Trial of the Case Concerning the Right of Reputation. 35 Some Chinese courts have even found that doctrines in the USA such as “public figures” can be equally applied. For example, in Fan Zhiyi v. Wenhuixinmin United Newspapering Grp. the Court stated that although the defendant, in error and unintentionally, referred the plaintiff, who was a famous football star, as a suspect in a “football gambling scandal” report and then remitted the plaintiff from such disrepute in its following press, the plaintiff, as a public figure, should abide such a slight injury according to the “treating claimed but unve- rified misdemeanour of the defendant as innocence” argument. 36 issues unregulated by current statutes, to interpret current statutes and to privately give case opini- ons to a lower court if necessary, Guayu Sifa Jieshi Gongzuo de Guiding [Provisions on the Judicial Interpretation Work] (promulgated by the Sup. People’s Ct., Mar. 9, 2007, effective Apr. 1, 2007), arts. 5-6, 2007 [5] Sup. People’s Ct. Gaz. 25, CHINALAWINFO chl_89508, translated in LAWINFOCHINA; Guayu Sifa Jieshi Gongzuo de Ruogan Guiding [Several Provisions of the Supreme People’s Court on the Judicial Interpretation Work] (promulgated by the Sup. People’s Ct., June 23, 1997, effective July. 1, 1997) arts. 4, 9, 1997 Sup. People’s Ct. Gaz. 96 (repealed 2007). Such legislative power is claimed to be authorised by the Organic Law of the People’s Courts of the PRC, which provides that “The Supreme People’s Court gives interpretation on questions concerning specific application of laws and decrees in judicial proceedings”. Renmin Fayuan Zuzhi Fa [Organic Law of the People’s Courts] (promulgated by the NPC, July 5, 1979, effective Jan. 1, 1980, amended by the NPCSC, Sep. 2, 1983; Dec. 2, 1986; Oct. 31, 2006) art. 32, CHINALAWINFO chl_81825, translated in LAWINFOCHINA. But many rules enacted by the Supreme Court are suspected of overreaching what they are empowered to do. 33 Compare with supra notes 19-21 and the accompanying text. 34 Xing Fa [Criminal Law] (promulgated by the NPC, Mar. 14, 1997, effective Oct. 1, 1997) pt. Ⅲ, ch. 4, art. 246, sec. 1, 1997 NPCSC GAZ. 184, translated in LAWINFOCHINA (“Those openly insulting others using force or other methods or those fabricating stories to slander others, if the case is serious, are to be sentenced to three years or less in prison, put under criminal detention or surveillance, or de- prived of their political rights.”). 35 Guayu Shenli Mingyuquan Anjian Ruogan Wenti de Jieshi [Interpretation on Several Issues about the Trial of Cases Concerning the Right of Reputation] (promulgated by the Sup. People’s Ct., July 14, 1998, effective Sep. 15, 1998) Issue 2, 4, 1998 Sup. People’s Ct. Gaz. 137, translated in LAWINFOCHINA, availa- ble at http://www.procedurallaw.cn/english/law/200905/t20090508_217007.html (Issue 2: “The people’s court shall not accept the action instituted by the interested parties on the ground that, the contents of the publications, materials etc. which are compiled by relevant agencies and organisations and only for internal reference in the leadership departments infringe upon their right of reputation.”; Issue 4: Th e people’s court shall not accept an action instituted by the interested parties on the ground that the conclusions made by the functional agencies such as state authorities, social organisations, en- terprises, government-sponsored institutions etc. according to their authorities against the interested parties who are personnel under their administration infringe upon their right of reputation.). 36 Fan Zhiyi Su Wenhuixinmin Lianhe Baoye Jituan [Fan Zhiyi v. Wenhuixinmin United Newspapering Grp.] (Shanghai Jingan Dist. People’s Ct. Dec. 18, 2002), DOCIN.COM (Oct. 18, 2010), http://www. docin.com/p-89332439.html. 56 DIGNITAS n Pravo človekovih pravic Little evidence shows that “political speech” is enshrined as a fundamental latitude in China, but the Constitution does men- tion that political criticism should be encouraged, by providing that: Citizens of PRC have the right to criticise and make su- ggestions regarding any State organ or functionary. Citizens have the right to make to relevant State organs complain- ts or charges against, or exposures of, any State organ or functionary for violation of law or dereliction of duty; but fabrication or distortion of facts for purposes of libel or fal- se incrimination is prohibited. The state organ concerned must deal with complaints, charges or exposures made by citizens in a responsible manner after ascertaining the facts. No one may suppress such complaints, charges and exposures or retaliate against the citizens making them. 37 Further, “[a]ll State organs and functionaries must ... hear their (people’s) opinions and suggestions, accept their supervision ...”. 38 , 39 By and large, the freedom of expression provided by the US Constitution and the PRC Constitution is essentially the same, and PRC exceeds the US regarding the protection of “political speech” by express constitutional statutes; fundamental dogmas for spee- ch liberty in US common law are literally “copied” in PRC law or recognised by some Chinese courts as feasible in the legal frame- work. II. Politics of Free Speech However, the law found in books patently transforms its aspec- ts in practice from case to case in China, where judges always de- cide cases less on justice than on other considerations such as liti- gants’ status. It is difficult to measure how well the mentioned PRC 37 XIANFA ch. II, art. 41, § 1-2 (1982). 38 XIANFA ch.Ⅲ, art. 27, § 2 (1982) (alteration in original). 39 The citizens’ right to political criticism was not ignored in the preceding three Constitutions; sta- tutes akin to the provisions of the present Constitution can be found there, XIANFA ch.Ⅲ, art. 14, § 2; art. 15, § 1; ch. Ⅲ, art. 55 (1978); XIANFA ch. Ⅲ, art. 13; ch. Ⅲ, art. 27, § 3 (1975); XIANFA ch. Ⅲ, art. 17; ch. Ⅲ, art. 97 (1954). 57 DIGNITAS n Politics and Ideology Beyond the Law of Free Speech freedom of expression is guaranteed according to comprehensi- ve statistics data, 40 but some eye-catching speech cases show that dogma in free speech is rendered ad libitum from case to case. 41 Some available data show that political speech antagonistic to the Government is unwelcome in the discretion of judges, which can also be substantiated by the opinions of the Supreme People’s Co- urt: First, commentators’ viewpoints about a government official performing his duties should not contravene a governmental eva- luation of such a person if such an evaluation does exist. In Hu- ang Shiguan and Huang Dexin v. Guangxi Legal Press and Fan Baozhong, the press reported that the plaintiffs, as judges, had been arrested by the Procuratorate for their “practising injustice and committing anti-discipline”; then, a charge against two Huan- gs was dismissed by the Court, but the press declined to publish the news of the dismissal, insisting that the previous arrest was correct. The Supreme People’s Court supported the two Huangs’ claims of libel and incurred liabilities because the dismissal of the criminal case made it clear that the previous arrest was wrong, and that its propagation was unfair. 42 In another case, the defendant 40 Most judgements of PRC courts are not open to the public. 41 For example, Xiao Chuanguo, a urologist and professor who competed for the China highest acade- mic title, an academician at the Chinese Academy of Science, accused Fang Shimin (aka Fang Zhouzi) who criticised him for contravening professional ethics, boasting his academic publications and achi- evements by hyperbole in the competition materials. In several Internet conversations, Fang made such comments based on data collected from websites of organisations such as Xiao’s employers, academic publications and achievements recorders. Two courts confirmed the libel charge and jud- ges reasoned that a commentator should not establish criticism mainly based on website information, Xiao Chuanguo Su Zhongguo Xiehe Yike Daxue ChubansheⅢFang Shimin [Xiao Chuanguo v. PUMC Press, Fang Shimin] (Hubei Wuhan Jianghan Dist. People’s Ct. July 25, 2006), NEW THREADS (July 31, 2006), http://www.xys.org/xys/ebooks/others/science/dajia7/xiaochuanguo141.txt; Xiao Chuanguo Su Zhongguo Xiehe Yike Daxue ChubansheⅢFang Shimin Shangsu An [Xiao Chuanguo v. PUMC Press, Fang Shimin] (Hubei Wuhan Interm. People’s Ct. Feb. 27, 2007), NEW THREADS (Mar. 22, 2007), ht tp://www.xys.org/xys/ebooks/others/science/dajia8/xiaochuanguo399.txt. In the other similar case, two other courts dismissed the charge because Fang had tried his best to pick out information on authoritative websites to build up his comments on a public figure, Xiao Chuanguo Su Beijing Leiting Wanjun Wangluo Keji Youxian Zeren GongsiⅢFang Shimin [Xiao Chuanguo v. Beijing Leiting Wanjun Network Technology Co. Ltd, Fang Shimin] (Beijing 1st Interm. People’s Ct. May 25, 2007), NEW THREADS (May 28, 2007), http://www.xys.org/xys/ebooks/others/science/dajia8/xiaochuanguo434. txt; Xiao Chuanguo Su Beijing Leiting Wanjun Wangluo Keji Youxian Zeren GongsiⅢFang Shimin Shangsu An [Xiao Chuanguo v. Beijing Leiting Wanjun Network Technology Co. Ltd, Fang Shimin] (Beijing High People’s Ct. Nov. 29, 2007), NEW THREADS (Nov. 30, 2007), http://www.xys.org/xys/ ebooks/others/science/dajia8/xiaochuanguo473.txt. Fang Zhouzi is a freelancer in science who also runs an influential website called “New Threads” (www.xys.org) to expose the pervasive academic misconduct in China. 42 Guanyu Guangxi Gaoyuan Qingshi Huang ShiguanⅢHuang Dexin Yu Guangxi Fazhi BaosheⅢFan Baozhong Mingyu Qinquan Yi’an Qingshi de Fuhan [Reply to Guangxi High Ct., Huang Shiguan, Huang Dexin v. Guangxi Legal Press, Fan Baozhong] CHINALAWINFO chl_50046 (Sup. People’s Ct. July 31, 2000) (No. 2000 - 8). 58 DIGNITAS n Pravo človekovih pravic was barred from making public comments contrary to the conclu- sion of a governmental organisation: Zheng Daichou, a member of a professional qualification examination committee, held out to the committee that Wang Shuiquan, a public university teacher and a candidate for the title of Associate Professor had in the su- pport material for one of his articles plagiarised from others’ scho- larship; when the committee dismissed this argument, the unper- suaded Zheng made his comments public; the Supreme People’s Court supported Wang’s defamation complaint against Zheng for his wrong opinions at odds with the Government bodies. 43 , 44 Thus, the Government’s political viewpoints as exclusively true speech prohibit their dissidence from circulating, which is not in accord with the preceding defamation doctrines in routine libel cases in China and in the USA. Second, in the USA, the Government is conventionally treated as unqualified for the right to repute, as the Court in New York Ti- mes Co. v. Sullivan found in the case of City of Chicago v. Tribune Co. 45 Contrarily, Chinese courts always allow governmental bodi- es to act as plaintiffs in defamation cases. In 2006, the Hunan Yon- gzhou Qiyang Public Security Bureau won a libel case against Dai Tingyuan; 46 and earlier in 1995 the Guangdong Shenzhen Futian People’s Court successfully sued the Magazine of Democracy and Legal System for critical comments in the Shenzhen Intermediate People’s Court. 47 In China such libel cases, according to the Supreme People’s Court government officials and bodies have a privilege over com- mon persons: Even if criticisms of them are “objective and accu- 43 In China, a professional qualification evaluation is a governmental authority of an administrative license, Guayu Shixing Zhuanye Jishu Zhiwu Pinren Zhidu de Guiding [the State Council on Regu- lation of Professional Titles] (promulgated by the St. Council, Feb. 18, 1986, effective Feb. 18, 1986) CHINALAWINFO chl_2704; Gaodeng Xuexiao Jiaoshi Zhiwu Shixing Tiaoli [Interim Regulation of Higher Education Institutions Teachers’ Professional Titles] (promulgated by the Central Government Professional Titles Reform Work Leading Group, Mar. 3, 1986, effective Mar. 3, 1986) CHINALAWINFO chl_10084. 44 Guanyu Wang Shuiquan Su Zheng Daichou Mingyuquan An de Fuhan [Reply to Jiangxi High Ct., Wang Shuiquan v. Zheng Daichou] CHINALAWINFO chl_4658 (Sup. People’s Ct. Apr. 6, 1990) (No. 1989 - 39). 45 New York Times Co. v. Sullivan, 376 U.S. 254, 277 (1964); City of Chicago v. Tribune Co., 307 Ill. 595, 607 (1923). 46 Qiyangxian Gong’anjüⅢLiu HepingⅢZou WeiⅢWang Guoxuan Su Dai Tingyuan Zhixing An [Civil En- forcement Judgement, Qiyangxian Public Security Bureau, Liu Heping, Zou Wei, Wang Guoxuan v. Dai Tingyuan] (Hunan Yongzhou Lengshuitan Dist. People’s Ct. Feb. 27, 2007) (Docket: 2006 - 238). 47 Liu Haitao, Zheng Jinrong & Shen Rong, Baodao Re Guansi, Baoshe Danze [A Magazine Lost a Case for Its Report], RENMIN FAYUAN BAO [PEOPLE’S COURT NEWSPAPER], Jul. 4, 2006, available at http://www.jcrb.com/zhuanti/fzzt/xwqqkb/al/200809/t20080903_69220.html. 59 DIGNITAS n Politics and Ideology Beyond the Law of Free Speech rate”, the press should still be liable for “infringement” if “the pu- blic official documents and functional acts of state authorities” “have been corrected in public but the news agency refuses to correct the report”. 48 Moreover, when a case of defamation crime is established, generally only the calumniated person can act as a plaintiff other than the Procurator; but when a case is related to a government official or body, it may be regarded as “seriously undermining social order or the state’s interests” and call on the Police and Procurator which, 49 under Chinese law and practice, have much more power than others to collect enough evidence to win the case. 50 Although penal punishment for maligning the Government is available in China, usually the Government will prosecute a critic for his speech’s seditious impact apart from in an action for libel, as in Liu’s case, because a libel case will focus too much on the speech content when it comes to discerning true facts from false claims, which is always “sensitive” in terms of embarrassing the Government, 51 while a sedition case mainly seeks to judge the ef- fect of the speech 52 and can easily lead to a heavier punishment. 53 Liu was convicted under the Criminal Law of P R C, Article 105, Section 2, which states: Whoever instigates the subversion of the political power of the state and overthrow the socialist system through sprea- ding rumours, slandering or other ways is to be sentenced to not more than five years of fixed-term imprisonment, criminal detention, control or deprivation of political rights; the ringle- aders and those whose crimes are grave are to be sentenced to not less than five years of fixed-term imprisonment. 48 Interpretation on Several Issues about the Trial of Cases Concerning the Right of Reputation (pro- mulgated by the Sup. People’s Ct., July 14, 1998, effective Sep. 15, 1998), Issue 6, 1998 Sup. People’s Ct. Gaz. 137 – 138. 49 Criminal Law (promulgated by the NPC, Mar. 14, 1997, effective Oct. 1, 1997) pt. Ⅲ, ch. 4, art. 246, sec. 2, 1997 NPCSC GAZ. 184. 50 For example, torture is illegal and widely used. 51 ‘Sensitive’ words have comprehensively been avoided from use in China in any place. For example, Internet speech is stringently censored to sift them out, Tania Branigan, Google to End Censorship in China over Cyber Attacks, THE GUARDIAN, Jan. 13, 2010, available at http://www.guardian.co.uk/ technology/2010/jan/12/google-china-ends-censorship. 52 The lawyer for the defendant is always admonished by the Government for arguing about the im- pact rather than the content of the speech. 53 The longest imprisonment for libel is three years, while for sedition it is fifteen years, Criminal Law, pt. Ⅲ, ch. 4, art. 246, sec. 1; pt. Ⅲ, ch. 1, art. 105, sec. 2; pt.Ⅲ, ch. 3, subch. 4, art. 45, 1997 NPCSC Gaz. at 184, 155, 146 (China). 60 DIGNITAS n Pravo človekovih pravic Liu was charged over such seven seditious words in all of his writings: (1) “the dictators of CPC have cared most for their own powers and least for citizens’ lives since the Party came into po- wer in China;” (2) “the dictatorship of CPC propagates ‘official patriotism’ that essentially and fallaciously replaces the notion of ‘country’ with ‘the Party’ to misguide the people to love the dicta- torship of authority, Party and dictators, which oppresses people under the cover of patriotism;” (3) “all the instruments wielded by CPC are only expedient to sustain its moribund governance but cannot support the edifice of dictatorship with collapsing cracks everywhere for the long term;” (4) “citizens should transform the society to incur a change of Government”; (5) “a free China badly counts on new civil forces rather than new governance grown up from inside the Government; (6) China should abolish the One- Party political system;” (7) “the United States of China should be built in the framework of a democratic constitution”. 54 According to Professor Gao, Liu’s words even constituted cri- minal sedition in the light of US laws 55 : (1) 18 U.S.C. § 2383 56 and 18 U.S.C. § 2385; 57 (2) Schenck v. United States, Abrams v. United States, and Mack v. State. 58 Further searching may support Professor Gao regarding the existence of more legislation on sedition in the USA than just Section 2383 and Section 2385, as one reviewer combed through some historical material: “[O]n May 16, 1918, Congress amended and expanded the Espi- onage Act with passage of the Sedition Act. It became illegal to utter or print any profane language that interfered with the ope- ration or success of the U.S. military or criticized the government or Constitution”. 59 “It (the Voorhis Act of 1940) requires that organizations regi- ster with the Attorney General if they engage in political or ci- 54 In re Liu Xiaobo Sedition to Subvert the Government (Beijing 1st Interm. People’s Ct. Dec. 25, 2009); In re Liu Xiaobo Sedition to Subvert the Government (Beijing High People’s Ct. Feb. 11, 2010). 55 Supra note 9. 56 Stating: “Whoever incites, . . . any rebellion or insurrection against the authority of the United States or the laws thereof, . . . shall be fined . . . and shall be incapable of . . . .” 57 Stating: “Whoever knowingly or willfully advocates, abets, advises, or teaches . . . prints, publishes, edits, issues, circulates, sells, distributes, or publicly displays any written or printed matter ... overthro- wing or destroying any government in the United States by force or violence, ...”. 58 Zhongpingshe, supra note 7, para. 3, sentence 8; Xinhua-net, supra note 8, Para. 5, sentence 3, para. 6, sentence 2. For the three cases, see the cases cited supra note 26; infra notes 68, 72. 59 Joshua Azriel, Five Years After the 9/11 Terrorist Attacks: Are New Sedition Laws Needed to Capture Suspected Terrorists in the United States?, 6 Conn. Pub. Int. L.J. 1, 7 (2006) (alteration in the original). The Sedition Act was repealed in 1921, Id.. 61 DIGNITAS n Politics and Ideology Beyond the Law of Free Speech vilian military activities with the goal of overthrowing the U.S. government”. 60 “The McCarran Internal Security Act of 1950 ... required most Communist associations and organizations to register with the Attorney General and to submit a detailed report listing all the machinery they owned that was used for printing books and pamphlets”. 61 “Section 411 of the Patriot Act, authorizes the government to exclude aliens from the country based on their speech”. 62 Further, case laws accompanying these sedition statutes invol- ve limited criminalisation of seditious speech only for its unaccep- table inciting effecting, because “[c]riminal law ‘only deals with conduct,’ not the moral character of the actor”. 63 So, abstract ide- als embracing dictatorship, anarchy or overthrowing democratic authority other than advocating subversion of the US government will not be punished under the laws on sedition. 64 But what consti- tutes so-called ‘illegally advocating’ has always been problematic in the application of the sedition doctrine ever since. It is argued that in the course of history US case laws have developed three se- dition yardsticks, in sequence, namely “bad tendency”, “clear and present danger”, and “imminent and likely lawless action”. 65 “Bad tendency” is argued to be a misunderstood reading of Blackstonism that legitimatised punishment for “pernicious ten- dency” speech to service “peace and good order”. 66 “Clear and present danger” is the opinion of the Schenck Court that “[t]he question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that 60 Id. at 14. And the Act is still carried out today as in 18 U.S.C. § 2386 (2006) (alteration in the origi- nal). 61 Id. at 14-15 (footnote omitted). The McCarran Act was repealed in 1990, Id. at 19. 62 Id. at 19. This law is now active in 8 U.S.C. § 1182(a)(3)(B)(Ⅲ)(Ⅲ) (2006). 63 Bloustein, supra note 27, at 1121 (alteration in original) (construing Justice Holmes’ doctrine of criminal attempts). 64 Communist Party of Indiana v. Whitcomb, 414 U.S. 441, 447-48 (1974); United States v. Robel, 389 U.S. 258, 262-263 (1967); Noto v. United States, 367 U.S. 290, 297-99 (1961); Yates v. United States, 354 U.S. 298, 326-27 (1957); Dennis v. United States, 341 U.S. 494, 502-07 (1951); Gitlow v. New York, 268 U.S. 652, 664-65 (1925). 65 See Terry Heinrichs, Gitlow Redux: “Bad Tendencies” in the Great White North, 48 WAYNE L. REV. 1101, 1118-19 (2002) (“Prior to Schenck, ‘bad tendency’ had long been the preferred judicial remedy ...”.); Jason Paul Saccuzzo, Bankrupting the First Amendment: Using Tort Litigation to Silence Hate Groups, 37 CAL. W. L. REV. 395, 405-09 (2001). 66 Geoffrey R. Stone, The Origins of the “Bad Tendency” Test: Free Speech in Wartime, 2002 SUP. CT. REV. 411, 432 (2002). 62 DIGNITAS n Pravo človekovih pravic Congress has a right to prevent”. 67 “Imminent and likely lawless ac- tion” comes from the wording in Brandenburg v. Ohio that “con- stitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action”. 68 It seems that courts have historically tended to apply a stricter standard on the proximity between “seditious” speech and lawless action, as the vicissitude of “advocacy” connotations shows. But each criterion is so plastic that it can contain even sharply opposi- te opinions for its application to the same case. 69 Moreover, even the variance among these criteria is subtle and perplexing for di- scerning: commentators have found that Schenck created a “clear and present danger” but did not apply the doctrine itself 70 and the Supreme Court has often invoked the earlier “bad tendency” long after Schenck; 71 it seems that “clear and present danger” even budded during the earlier period of “bad tendency”; 72 “imminent and likely lawless action” should not be simply regarded as a new and outstanding creature of Brandenburg 73 and the earliest “bad tendency” could even be resuscitated by courts today. 74 Gauging Liu’s case by the US sedition doctrines, it is easy to conclude that no imputation should be handed out against him. His criminated seven sentences merely include two ingredients: criticising the dictatorship of the CPC, for Sentences 1–3; and ho- ping for political strength other than the CPC and its Government to emerge, for Sentences 4–7. What Liu said was not directly rele- vant to a change of the current authority, whether you describe such “speech” as “preaching”, “abetting”, or “inciting”. But, how 67 Schenck v. United States, 249 U.S. 47, 52 (1919) (alteration in original). 68 Brandenburg v. Ohio, 395 U.S. 444, 447 (1969). 69 I.e., opposite parties can both find some support in the same doctrine. See Brandenburg, 395 U.S. at 449 (overruling Whitney v. California, 274 U.S. 357 (1927)); Robel, 389 U.S. at 282-89 (White, J., dis- senting); Dennis, 341 U.S. at 515 (“We agree that the standard as defined is not a neat, mathematical formulary.”); Gitlow, 268 U.S. at 672-73 (Holmes, J., dissenting); Abrams v. United States, 250 U.S. 616, 624-31 (1919) (Holmes, J., dissenting). 70 Heinrichs, supra note 63, at 1106. 71 Id. at 1123-24. 72 Bloustein, supra note 27, at 1120. 73 Brandenburg, 395 U.S. at 447 (“These later decisions have fashioned the principle that . . . .”); also see Mack v. State, 463 So. 2d 344, 345 (1985) (the defendant arguing that his action fell short of “a clear and present danger”). 74 Isaac Molnar, Resurrecting the Bad Tendency Test to Combat Instructional Speech: Militias Beware: Rice v. Paladin Enterprises, Inc., 128 F.3d 233 (4th Cir. 1997), 59 OHIO ST. L.J. 1333 (1998). 63 DIGNITAS n Politics and Ideology Beyond the Law of Free Speech has his support for the newly emerging political powers, in the Chinese legal context, been characterised as sedition of overthro- wing the present Government? Currently, a good number of scholarly works in China delve dee- ply into libel laws; yet few materials that seriously examine the laws on sedition are available, perhaps because scholars always cringe when it comes to this ‘sensitive’ academic area. This makes it impos- sible to probe Chinese scholars’ sincere academic viewpoints on sedition issues. But the fact that the Chinese Government dares to publicly criminate a well-known and high-profile political dissident like Liu 75 under such a disputable law can show, to some degree, that it is confident that the reason for the conviction is cogent juri- sprudence. 76 Then, what is the Chinese logic behind Liu’s case? Numerous research materials find that speech is able to po- werfully affect human behaviour because the expressed informa- tion is “fundamental to human existence” and prompts people to “adapt” their acts. 77 In this way, speech essentially influences the formation and development of social culture and actions; for example, “at the heart of strong democracy [perhaps we could say democracy more generally] is talk”; “every human interaction that involves language or linguistic symbols”. 78 And researchers can, ac- cording to quantity, establish relations between information and actions; for example, models of information as a “central, practical feature” of “political and economic governance”. 79 In this sense, “every idea is an incitement”. 80 Accordingly, whether some speech should be prohibited for being illegally seditious depends on which acts it could “incite”. 75 Liu Xiaobo, WIKIPEDIA, http://en.wikipedia.org/wiki/Liu_xiabo (last visited Sep. 18, 2011). 76 Alternatively, the Chinese Government can cap other criminal statutes on such political dissidents. For example, the Criminal Law of the PRC, Part Ⅲ, Chapter 3 (Crimes of Undermining the Order of Socialist Market Economy) is a priority among the available tools because crimes under such caps are commonly regarded as economically selfish, which will defame the political activists claiming to pursue welfare for the public. Some dissidents were so treated, AP, Chinese Legal Scholar Held for Tax Evasion: His Group Worked on Behalf of Victims of Tainted-Milk Scandal, CHINA ON MSNBC.COM (Aug. 4, 2009, 2:25 PM ET), http://www.msnbc.msn.com/id/32286049/ns/world_news-asia_pacific/t/ chinese-legal-scholar-held-tax-evasion/; AP, China Says Artist Ai Weiwei Detained for Economic Cri- mes, CBCNEWS (Apr. 7, 2011, 7:38 AM ET), http://www.cbc.ca/news/arts/story/2011/04/07/ai-wei- wei-china-detention.html. 77 Amanda Spink and Charles Cole, A Human Information Behavior Approach to a Philosophy of Information, 52 LIBRARY TRENDS, no. 3, Winter 2004 at 618. 78 BENJAMIN BARBER, STRONG DEMOCRACY: PARTICIPATORY POLITICS FOR A NEW AGE 173 (Berkeley: University of California Press 1984), quoted in Paul Fairfield, A Modest Phenomenology of Democratic Speech, 10 THE EUROPEAN LEGACY, no. 4, 2005 at 360. 79 John W. Patty, The Politics of Biased Information, 71 THE JOURNAL OF POLITICS, no. 2, April 2009 at 385-397. 80 Gitlow v. New York, 268 U.S. 652, 673 (1925). 64 DIGNITAS n Pravo človekovih pravic There are two approaches to overthrowing a government: de- mocracy or dictatorship. For a democratic government, there are legal ways to change it through democratic processes such as elec- tion and deposing 81 where all kinds of speech trying to “incite” the change can “rebut” or “answer” each other. 82 Such free debate is most likely to result in a majority rule that fits into the present legal frame, unless some theoretical and unlikely glitch happens. 83 Yet things are different when we talk about dictatorially subver- ting a democratic government, which is beyond the permission of present law. But ideas for such a rebellion may not be criminated for lacking the proximity of the idea-act. To implement the goal of dictatorship, such speech should have circumvented democra- tic debate to incite the minority; but when it dives into the free pool of debate as part of an effort to win the majority’s support, it is seeking to overthrow the current government in a democratic way within the democratic legal structure; there surely exists the possibility that some supporters of a dictatorship may be invigo- rated by such ideas in the debate and surreptitiously replace the government by force, yet this falls out of the speech’s target if it does not intend such use. Therefore, whether to criminate seditious speech within the framework of a political democracy can largely depend on whe- ther it is for “candid discussion” 84 in the “idea market”; 85 if it is, it is exculpatory even under the “bad tendency” doctrine; or perhaps the “clear and present danger” or “imminent and likely lawless acti- on” criteria should be invoked when further perusing the strength of its incitement. Abstract ideals are susceptive to fairly debatable subject matter in such a market, while calling on a revolt against a specific government is liable to be concrete demagogy due to its purpose to directly instruct some action other than argument. Some speech, ranging from “abstract” and “advocacy”, has its “ad- vocacy” fallout measured against the governmental capability to 81 See U.S. CONST. art. Ⅲ, §§ 2-3; art. Ⅲ, § 1; art. Ⅲ. 82 Dennis v. United States, 341 U.S. 494, 503 (1951). 83 For example, in the presidential election of 2000 Al Gore won more popular votes but lost to Ge- orge W. Bush due to the shortage of electors; if the majority of citizens insist that Al Gore should be the President as the democratic outcome, such political action might be seen as an illegal toppling of the Bush Government. Again, if too many citizens are excluded from the voter list, which actually influences the election outcome, the opinion to nullify such an election might be seen as subversive if it goads the majority for such a fight. 84 Abrams v. United States, 250 U.S. 616, 622 (1919). 85 Justice Holmes mentioned such a notion early, Steven J. Heyman, Righting the Balance: An Inquiry into the Foundations and Limits of Freedom of Expression, 78 B.U.L. REV. 1275, 1302-03 (1998). 65 DIGNITAS n Politics and Ideology Beyond the Law of Free Speech contain its seditious effects; the Government will judge such ba- lance, based on various factors, to decide if the governmental po- wer is confident enough to let such speech go, or to punish it for its unacceptable danger. 86 Similarly, for an autocratic government, to privately propagate toppling it by a coup d’état probably falls under the heading of “seditious advocacy”. But, contrary to a democratic society, ma- king speech in the “idea market”, whether claiming to support a new dictatorship or a democratic government, also falls outsi- de of what the present government approves: The “idea market” will absorb such “changing the present government” ideas and seek to form a majority rule that will surely oppose the present totalist one. Dictatorship builds its legitimacy on a natural origin other than the conferring of a political democratic process. And dictatorship can never accept its authority as being inferior to the mass’ democratic politics, even if the latter might support its po- wer, because it fears that the people may, one day, change their minds and rescind such political authorisation. 87 For a democratic government, dictatorship-prone ideas probably languish in the amplitude of the “idea market” and hardly endanger the democra- cy; while, for a despot, calls for democracy are resonant during fair debate in the “market” and rise up against the autocracy. Thus, the more chances there are for debate, the more tolerant the elected government can be in holding out to anti-democratic ideas, while the autarch can face greater peril from a pro-democracy speech. A dictatorship, involving a minority in society, is never powerful enough to bear any voices, whether supporting democracy or other rulers, which negate its legitimacy. As for Liu’s speech, Sentences 1–3 criticised the CPC for being an incorrigible dictatorship that is essentially the enemy of a mo- dern democracy and never compatible with the sovereign of the nationals, while Sentences 4–7 called for a democratic China that necessitates the abolition of the autocratic regime of the CPC and 86 For example, »at war« is a typical reason for stricter regulation, Schenck, 249 U.S., at 52 (“We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done”). And Joshua Azriel found that “[s]everal times in the nation’s history, during national crisis or war, Congress passed laws that limited the right to free speech, and the U.S. Supreme Court upheld many of them”. Azriel, supra note 58, at 1 (alteration in original) (footnote omitted). 87 For example, in Chinese Taiwan, Kuomintang was the dictatorial party before 1986 when the One- Party politics were abolished; it still won many elections after then, but it is never able to retain the dictatorship as before. 66 DIGNITAS n Pravo človekovih pravic its Government; by and large, his controversial six articles and the “2008 Charter” all talked about these two topics. 88 Different from abetting speech that tries to a trigger rebellion by circumventing the filtration of the “idea market”, Liu’s speech activated the de- mocratic turn of the “idea market” that will produce some actions; unlike privately propagated words that call for a coup d’état, what Liu did to ignite the debate on the legitimacy of the present gover- nment in the “idea market” was sufficient to incite an overthrow a government it if it be dictatorial because the democratic market is itself anti-dictatorship. The Courts relied much for the crimination on the fact that Liu extensively spread his speech over the “idea market”, particularly on the Internet. 89 Another premise for the crime of sedition is that it abets to violently revolt, 90 but a gover- nmental transition can hardly be peaceable if the old one, such as a dictatorship, regards the new establishment, such as a republic, as illegal. The question of Liu’s case can thereby be reduced to: Does the Chinese Constitution confer dictatorial power on the CPC and its Government? The Constitution of PRC constructs a complex and delicate system of authority for state governance: (1) Preamble, Paragraph 7 stipula- tes that the CPC is the leader of the “People” and the Authority: “under the leadership of the CPC ... the Chinese people of all nationalities will ...”; (2) Chapter I, Article 2 makes it clear that “[a]ll power in the PRC belongs to the people” and the “NPC (National People’s Congress) and the local people’s congresses at various levels are the organs 88 See In re Liu Xiaobo Sedition to Subvert the Government (Beijing 1st Interm. People’s Ct. Dec. 25, 2009); In re Liu Xiaobo Sedition to Subvert the Government (Beijing High People’s Ct. Feb. 11, 2010). Liu’s six articles and “2008 Charter:” Zhonggong de Ducai Aiguo Zhuyi [The Dictatorial Patrio- tism Propagated by the CPC], PEACEHALL.COM (Oct. 4, 2005), http://www.peacehall.com/news/gb/ china/2005/10/200510041308.shtml; Nando Zhongguoren Zhipei Jieshou “Dangzhu Minzhu”? [Do Chinese Have to Live with the ‘Democracy’ Doled Out by the CPC?], DERKEILER.COM (Jan. 5, 2006, 10:39 PM), http://newsgroups.derkeiler.com/Archive/Talk/talk.politics.china/2006-01/msg00025.html; Tongguo Gaibian Shehui Lai Gaibian Zhengquan [To Change the Society and Then to Change the Authority] [hereinafter Liu, Change], BOXUN.COM (Feb. 28, 2006), http://news.boxun.com/news/gb/ pubvp/2006/02/200602280149.shtml; Duomian de Zhonggong Ducai [Facets of CPC. Dictatorship], PE- ACEHALL.COM (Mar. 14, 2006), http://www.peacehall.com/news/gb/pubvp/2006/03/200603140311. shtml; Ducai Jueqi Shi Dui Shijie Minzhuhua de Fumian Xiaoying [Boom of Dictatorship Counteracts the Trend of Global Democracy], BOXUN.COM (May 7, 2006), http://news.boxun.com/news/gb/ pubvp/2006/05/200605071934.shtml; Dui Heiyao Tongnu An de Jixu Zhuiwen [Further Inquiry into the Labor Cases: Teenage Slaves in Savage Mining Factories], PEACEHALL.COM (Aug. 2, 2007), http:// www.peacehall.com/news/gb/pubvp/2007/08/200708020440.shtml; China’s Charter 08, NYBOOKS. COM (Dec. 18, 2008), http://www.nybooks.com/articles/archives/2009/jan/15/chinas-charter-08/ (Perry Link trans.). 89 In re Liu Xiaobo (Beijing 1st Interm. People’s Ct.); In re Liu Xiaobo (Beijing High People’s Ct.). 90 18 U.S.C. § § 2383, 2385 (2006). 67 DIGNITAS n Politics and Ideology Beyond the Law of Free Speech through which the people exercise state power”; 91 and (3) Chapter III, Subchapter 1, Article 62 and Article 64 confer on the NPC the power to amend the Constitution by a majority of two-thirds. 92 , 93 Thus, although the Constitution puts the power in the hands of the “People” and the “People” manage the state in a democratic way, they can only operate the authority in line with instructions of the CPC; for example, many political activities are judged as il- legal and void for being at variance with CPC instructions in the process. 94 Moreover, obviating the “CPC Leadership” clause in the Constitution, as a political activity, is only legitimate when it is carri- ed out under the leadership of the CPC (with its consent). Further, the Constitution never mentions when the CPC should terminate its period of office. That is to say the CPC is forever a dictator unless it is willing to abdicate its leadership at some stage. Certainly, there can be some disagreement over such a dicta- torship clause. For example, one can ask whether the “People” at the time sincerely signed up to such Constitution a to render themselves servile to the CPC and, if they did, can the “People” of today change such a contract? In fact, the context of the Preamble to the Constitution explains that the “People” historically accept the CPC as their leader because only the CPC can hold power for them, 95 and so does the CPC Constitution; 96 this may imply that the 91 XIANFA ch. I, art. 2, § 1 - 2 (1982). 92 Id. ch. III, subch. 1, art. 62 (»The NPC exercises the following functions and powers: (1) to amend the Constitution; . . . .«); art. 64, § 1 (“Amendments to the Constitution are to be proposed by the NPCSC or by more than one-fifth of the deputies to the NPC and adopted by a vote of more than two-thirds of all the deputies to the NPC”). 93 Such political system was similarly established in the preceding Constitutions, XIANFA pmbl, para. 4; ch. I, arts. 2-3; and ch. III, subch. 1, art. 22 (1978); XIANFA pmbl, para. 4; ch. I, arts. 2-3; and ch. III, subch. 1, arts. 16-17 (1975); XIANFA pmbl, para. 4; ch. I, art. 2; and ch. Ⅲ, subch. 1, arts. 27, 29 (1954). 94 For example, in Jan. 2011 Zhang Bingsheng, the Mayor and Deputy Secretary of Shanxi Province, Taiyuan City, by mobile phone messages, canvassed several deputies of Shanxi People’s Congress to elect him as Deputy Provincial Governor as a non-candidate because the CPC had nominated his competitor as a candidate; he was then removed from both of his positions and punished by CPC disciplinary reprimand, Zhou Yingfeng & Cui Jing, Taiyuanshi Yuanshizhang Weifan Huanjie Jilü Shoudao Dangnei Yanzhong Jinggao Chufen [The Mayor of Taiyuan City Was Punished by CPC Di- sciplinary Severe Reprimand for His Defiance of CPC Disciplines], XINHUANET.COM (Apr. 12, 2011, 10:14 AM), http://www.sx.xinhuanet.com/jdwt/2011-04/12/content_22502434_1.htm. And Liu Ping, who was treated as defiant and unwelcome to the CPC, had all her effort as an independent candidate for Deputy to the People’s Congress nullified by the authority, see Oiwan Lam, China: Another Failed Grassroots Election, GLOBALVOICESONLINE.ORG (May 17, 2011, 2:10 PM GMT), http://globalvoice- sonline.org/2011/05/17/china-another-failed-grassroots-election/. 95 XIANFA pmbl, para. 1-5 (1982); XIANFA pmbl, para. 1 (1978); XIANFA pmbl, para. 1 (1975); XIANFA pmbl, para. 1 (1954). 96 Zhongguo Gongchandang Zhangcheng [CPC Constitution] General Programme, para. 3, transla- ted in XINHUANET.COM (Oct. 25, 2007, PM 7:56), http://news.xinhuanet.com/english/2007-10/25/ content_6944738.htm (“[T]he Chinese Communists . . . follow the road . . . chosen by the Chinese people . . . .” (alteration in original)). 68 DIGNITAS n Pravo človekovih pravic “People” have always tried to partner with various political parties in history, and that the “People” are free to choose their leaders, who are to serve rather than enslave them. If it is understood that the “People” can disemploy the CPC from the “leadership”, then Liu’s speech, calling for a democratic way to implement such acti- on, was surely within his right. Moreover, even if the CPC has a right to lead the “People”, the right should coexist with, rather than overpower the rule of the “People”. The CPC itself professes that it “has no special interests of its own apart from the interests of the working class and the broadest masses of the people” 97 . Thus, if the CPC breaches the contract to impinge upon the right of the “People”, the “People” may respond with a precautionary act by suspending its leader- ship, punishing or deposing it. Accordingly, Liu’s speech is neces- sary for the “People” to communicate with each other as part of the consideration of possible action against the CPC’s suspected betrayal of the constitutional compromise. Whatever the critique of the dictatorship clause may be, the CPC insists on the “Principle” of “leadership by the CPC”. 98 On the premise of a legitimate CPC dictatorship, cracking down on words like Liu’s may accord with some of the US “sedition” doctri- nes for the necessary sustaining of the present legal system; and the narrower space for latitude in China than in the USA may be legally forgivable because a democratic government is inherently more magnanimous in tolerating anti-government speech than a dictatorial one. In light of the conclusion that free debate on deposing the present government could lead to subverting it in the Chinese legal framework, many other instances of democratic speech in- volving a critique of governmental policies can also be seen as obstructing the government in discharging its duties, punishable under all sorts of statutes. 99 It seems that the mass of patience 97 Id. para. 25. 98 Id. para. 12. 99 For example, Criminal Law of the PRC, Part I, Chapter 2, Subchapter 3, Article 29 states »one who instigates others to commit a crime« as a »Joint Criminal«, and Part II, Chapter 1 (Crimes of Endange- ring National Security), Chapter 6, Subchapter 1 (Crimes of Disrupting Public Order), and Chapter 7 (Crimes of Endangering the Interests of National Defence) can be applied to »seditious« words goading public opposition to governmental bodies when they are carrying out their duties; Law of the PRC on Public Security Administration Punishments, Chapter III, Subchapter 1 (Acts Disrupting Public Order and the Punishments Thereto), and Subchapter 4 (Acts Impairing the Social Administra- tion and the Punishments Thereto) can have the »provocative« speech to obstruct the Government under executive punishment; and so does the Decision of the State Council on Imprisonment for 69 DIGNITAS n Politics and Ideology Beyond the Law of Free Speech and tolerance of the Chinese Government regarding the politi- cal latitude for the people is not readily measurable on the basis of historical data, although there some signs exist to implicate greater odds of successfully bypassing the “sedition” mine field: For example, private anti-government discussion might be par- doned for its lack of invoking the strength of the “idea market”; 100 not only criticising the Government but also providing some advice for its improvement might be regarded as good-will and acceptable; 101 anti-government utterance by someone with a hig- her political status might be more accommodated for being “ad- vice” rather than “sedition” because higher ranks are less motiva- ted to topple the regime. 102 Although the CPC insists on its unchallengeable “leadership”, it does not dare to expressly profess that “leadership” is essentially Re-education Through Labour, see Guanyu Laodong Jiaoyang Wenti de Jueding [Decision of the State Council on Imprisonment for Re-education Through Labour] (promulgated by the St. Council, Aug. 3, 1957, effective Aug. 3, 1957) 1957 ST. COUNCIL GAZ. 731. Besides, the Decision on Safeguarding the Internet enumerates some typical speech content crimes and executively punishable transgression on the Internet, and so do Punishment of Illegal Publications (Guayu Chuli Weifa de Tushu Zazhi de Jueding [Punishment of Illegal Publications] (promulgated by the NPCSC, Nov. 8, 1955, effective Nov. 8, 1955) 1980 [3] NPCSC GAZ., CHINALAWINFO chl_8047), Law of the PRC on Assemblies, Processi- ons and Demonstrations (Jihui Youxing Shiwei Fa [Law on Assemblies, Processions and Demonstra- tions] (promulgated by the NPC, Oct. 31, 1989, effective Oct. 31, 1989) ch. 2, art. 12, 1989 [5] NPCSC GAZ. items 1-2, translated in LAWINFOCHINA), Regulations on Telecommunications of the PRC (ch. 5, art. 57), and Regulations on Internet Information Service (art. 15). Again, some “content-based” laws and governmental policies disqualify anti-CPCists from some professional or educational opportu- nities, e.g. Gongwuyuan Fa [Civil Servant Law] (promulgated by NPCSC, Apr. 27, 2005, effective Jan. 1, 2006) ch. II, art. 11, 2005 NPCSC GAZ. 309, 310, translated in LAWINFOCHINA; Xianyi Junguan Fa [Law of the People’s Republic of China on Officers in Active Service] (promulgated by NPCSC, Sep. 5, 1988, effective Jan. 1, 1989, amended May 12, 1994; Dec. 28, 2000) ch. II, art. 8, 2001 NPCSC GAZ. 28, 28, translated in LAWINFOCHINA; Lüshi Fa [Law on Lawyers] (promulgated by the NPCSC, Oct. 28, 2007, effective June 1, 2008) ch. II, art. 5, 2007 NPCSC GAZ. items 15-16, translated in LAWINFO- CHINA; 2000 Nian Putong Gaodeng Xuexiao Zhaosheng Gongzuo Guiding [Rules for Enrolment in Undergraduate Programmes at Higher Education Institutions in 2000] (promulgated by the Ministry of Ed., Apr. 3, 2000, effective Apr. 3, 2000) art. 1, para. 1, 2000 ST. COUNCIL GAZ. item 6; Zhaoshou Gongdu Shuoshi Xuewei Yanjiusheng Guanli Guiding [Regulations on Enrolment in Master Degree Programmes] (promulgated by the St. Educ. Comm’n, Nov. 5, 1996, effective Nov. 5, 1996) art. 2, CHI- NALAWINFO chl_19662; 2004 Nian Quanguo Putong Gaodeng Xuexiao He Keyan Danwei Zhaoshou Gongdu Boshi Xuewei Yanjiusheng Zhaosheng Jianzhang [Charter for Enrolment in Doctor Degree Programmes at Higher Education Institutions in 2004] (promulgated by the Ministry of Educ., Sep. 14, 2003, effective Sep. 14, 2003) art. 2, para. 1, 2003 MINISTRY OF ED. GAZ. 470, 470. 100 See XIANFA ch. Ⅲ, subch. 1, art. 75 (1982) (“Deputies to the NPC may not be held legally liable for their speeches or votes at its meetings”). 101 For example, according to Professor Gao, Liu’s speech could be indicted for its intention to subvert rather than to improve the Government, Xinhua-Net, supra note 8, para. 3, sentence 2. 102 See supra note 99. And Chairman Mao, as the high figure of the CPC, has legally lectured some words, such as »it is the people’s right to rebel against the Government”, which are much more subversive than Liu’s, Song Meiyu, Lixing de Mishi –”Weige” Zhong Hongweibing “Zaofan Youli” de Xinli Fenxi [Loss of Reason— the Psychoanalysis of Red Guards’ “Reasonable Rebelling” During “the Cultural Revolution”], [2009] 9 SHANXI GAODENG XUEXIAO SHEHUI KEXUE XUEBAO [SOCIAL SCIENCES JOURNAL OF COLLEGES OF SHANXI] 110 - 12. 70 DIGNITAS n Pravo človekovih pravic equal to despotism, perhaps because it cannot deny the right of the Chinese people to revolt against a despot, 103 like the “right” and “duty” “to throw off such Government” for the American pe- ople. 104 On the contrary, the CPC and its Government assesses its leadership as being more “democratic” than “imperialism, feudali- sm and bureaucrat-capitalism” that subsume the model of the US political system. 105 For this, the CPC “strictly distinguishes between the two different types of contradictions, those between oursel- ves and the enemy, and those among the people;” 106 the first type is handled by democratic politics, while the second by a gover- nmental dictatorship. 107 The obligation of the “People”, in the opi- nion of CPC leaders such as Chairman Mao Zedong, has always been ambiguous and varied in history, but the benchmark feature has been that the “People” should be patriots who support a CPC- led China. 108 Thus, the Chinese regime believes that the CPC and its Government can also be peaceably changed as in the USA, 109 but such change can only be implemented by the “People” who are faithful to the CPC leadership; those who want to depose the CPC are the “Enemy” without political rights in the country and, as a result, there are no political dissidents among the “People”. 110 Because the CPC is so confident due to the self-evident fact that the CPC devotees who make up the “People” represent the majori- ty of nationals, 111 it boasts such a broad democratic base breeding 103 See supra notes 94-95 and the accompanying text. And Chairman Mao confirmed such a right, Song, supra note 101. 104 THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776). 105 See XIANFA pmbl, para. 5 (1982); XIANFA pmbl, para. 1 (1978); XIANFA pmbl, para. 1 (1975); XI- ANFA pmbl, para. 1 (1954); CPC Constitution, general programme, para. 4. 106 CPC Constitution, general programme, Para. 17. 107 See XIANFA ch. Ⅲ, art. 1 (1982) (“The PRC is a socialist state under the people’s democratic dictator- ship ...”); XIANFA ch. Ⅲ, art. 1 (1978); XIANFA ch. Ⅲ, art. 1 (1975); XIANFA pmbl, para. 1 (1954). 108 Li Xuebang & Hu Dong, Renmin Gainian Zhengzhixing de Xianzheng Jiedu [The Constitutional Inter- pretation of the Political Connation of the “People”], [2006] 3 BEIFANG LUNCONG [THE NORTHERN FORUM] 154; Lu Jianjie, Manyi Dangqian Zhengzhi Huayu Zhong de Sange Gainian: “Ren”Ⅲ"Min"Ⅲ"Ren- min" [Three Concepts in Present Political Issues: “Human”, “Subject” and “People”], [2004] 2 WEISHI [ONLY THE TRUTH] 4; Xu Zhaojun, Renmin Neibu Maodun Gainian de Lishi Jiedu Ji Zai Xinshiqi de Lilun Jiazhi [A Historical Interpretation of Contradictions Among the People and Its New Theoretical Value], [2001] 1 XUESHU JIAOLIU [ACADEMIC EXCHANGE] 1; Yue Rongsheng, “Renmin Qunzhong” Gainian de Zaitan [Reconsideration About the Concept of People], [2007] 1 HUBEI JIAOYU XUEYUAN XUEBAO [JOURNAL OF HUBEI INSTITUTE OF EDUCATION] 58; Zhang Shaoyi, Dui Renmin Gainian de Xinjie [New Interpretation of the “People”], [2009] 15 XUE LILUN [THEORY STUDY] 50. 109 See CPC Constitution, general programme, para. 27 (“The Party must adapt itself to the march of events and changing circumstances, improving its system”). 110 BBC, Appeal by China Dissident Liu Xiaobo Rejected, BBC NEWS (Feb. 11, 2010, 3:34 PM GMT), http://news.bbc.co.uk/2/hi/asia-pacific/8509777.stm (“Foreign Ministry spokesman Ma Zhaoxu said there were ‘no dissidents in China’”). 111 CPC Constitution, general programme, para. 1 (“(C.P.C) represents . . . the fundamental interests of the overwhelming majority of the Chinese people” (alteration in original)). 71 DIGNITAS n Politics and Ideology Beyond the Law of Free Speech more democratic politics than in US and other Western capitalism states. Following such “socialist democracy” “with Chinese cha- racteristics” logic, 112 the freedom of political speech for Chinese “People” is limited to words that propitiate and help the CPC rec- tify some shortcomings regarding its self-renovation, and Liu’s cri- tique seemed shy of such characteristics. And for some Chinese scholars who believe China has a democratic system now, they may despair with the Western “Double-Standard” doctrine: While the USA can criminate speech that advocates the overthrowing of a democratic Government using mechanisms lying outside of its legal framework, why cannot China do this? For political speech, the idea of “candid discussion” in the “idea market” transforms into an element of the integrated “mar- ket” idea which then directly affects the audience; so the “mar- ket” idea rather than the individual one should account for any ill effect. Such rationale may also find a foothold in non-political speech cases: As in Part I, the specific valueless content of spe- ech can only be prohibited in some places other than in a fair debate “market”; words such as “obscene”, “insulting”, “fighting” and “false” are susceptible to non-for-“candid discussion”, inso- lubility in the “idea market”, and evil effect, but criticising a “pu- blic figure” has more chance of escaping a the libel charge for the existence of a keen “idea market” for its discussion. In China, the “idea market”, with exception of political subjects, does exist and some of the opinions in US defamation cases can be copied here, unless in some cases where the disputed speech has a cer- tain political colour or is related to a powerful mogul, then the court may resort to principles “with Chinese characteristics” to settle them. III. Ideology of Free Speech Different ideologies lead to varying viewpoints on “what spe- ech should be protected” by the same law on free speech. 113 So, to successfully upset a rationale for free speech might ‘cogently’ render void some laws supported by such a rationale. And such efforts always see hopeful results: It seems that doctrines for fre- edom of expression are “extensive” and there is hardly any com- 112 Id. general programme, para. 15. 113 See Molnar, supra note 73, at 1337. 72 DIGNITAS n Pravo človekovih pravic mon “foundational value” underpinning them; “[e]ach of the the- ories” “leads to highly dubious applications”. 114 Free speech, together with the separation of governmental po- wers and other establishments, are believed to improve the “Uni- on”, “Justice”, and so on; 115 among the rationales for the freedom of speech, the obtrusive scholarly one may be the merit of the mechanism of the “idea market” as Professor Zechariah Chafee, Jr. “argued that the most important purpose served by free speech was the social interest in ‘the discovery and spread of truth on subjects of general concern’”. 116 Although some analyses find that these rationales are “a web of mutually reinforcing values”, 117 there is still a chance that sometimes people regard the function of the “idea market” as being opposite to other more important values. The Sedition Act of 1798, which punished “false, scandalous and malicious” writings “against the government”, “with the in- tention” for “contempt”, “disrepute”, “hatred”, “sedition” or being “unlawful”, 118 has been “virtually unanimously” contended as vio- lating “certain fundamental principles of representative democra- cy” by “all political scientists, historians and legal scholars” “since the middle of the nineteenth century when the Act was explicitly disowned by Congress”. 119 According to James P. Martin, although the Act obviously contravenes the freedom of expression, Fede- ralists then supported it in the light of their favoured theory for speech democracy “via the representative mechanisms” that were purported to be “more democratic than modern ones, especial- ly if one takes into account the undeveloped conditions that still prevailed in the 1790s”. 120 In Patterson v. Colorado, the Supreme Court argued that criti- cism of the State Court, even if for public debate in the “idea mar- ket” and “to prove the truth”, could still be contemptuous because “[a] publication likely to reach the eyes of a jury, declaring a wi- tness in a pending cause a perjurer, would be none the less a con- 114 Daniel A. Farber & Philip P. Frickey, Practical Reason and the First Amendment, 34 UCLA L. REV. 1615, 1618, 1640-41 (1987) (alteration in original). 115 U.S. CONST. pmbl. 116 ZECHARIAH CHAFEE, JR., FREEDOM OF SPEECH 34 (1920); Zechariah Chafee, Jr., Freedom of Speech in War Time, 32 HARV. L. REV. 932, 956 (1919), quoted in Heyman, supra note 84, at 1302. 117 Farber & Frickey, supra note 113, at 1640. 118 Act of July 14, 1798, ch. 74, § 2, 1 Stat. 596, 596-97 (expired in 1801). 119 James P. Martin, When Repression Is Democratic and Constitutional: The Federalist Theory of Re- presentation and the Sedition Act of 1798, 66 U. CHI. L. REV. 117, 123 (1999). 120 Id. at 118. 73 DIGNITAS n Politics and Ideology Beyond the Law of Free Speech tempt that it was true”. 121 The Patterson reasoning is commonly regarded as “crabbed” 122 and that there was no “clear and present danger” in the defendant’s speech manner. 123 Later on, in a similar dispute in Bridges v. California the Supreme Court dismissed the contempt conviction because the petitioners’ acts – “publication in the newspapers aside, in sending the message to the Secretary”, the message even assumed “to call a strike”, were with their rights, and if the judge felt some intimidation by “the possibility of a stri- ke as a consequence of his decision”, it should be ascribed to such “facts themselves” rather than the petitioners’ speech. 124 If the Sedition Act of 1798 and Patterson can be read as the in- cumbent government feeling unconfident having its authority fre- ely scrutinised in the “idea market”, election campaign laws show people’s worry about the free speech “market” unfairly forming a new government, with a long history of regulating finance for spe- ech like “contribution” and “expenditure”, based on a variance in talking methods and speakers’ statuses. 125 There are many reasons to curb this freedom of expression, for example, eliminating cor- ruption for the intimate relations between patrons and clients, 126 levelling off unequal campaign funds among candidates, 127 and redressing “the corrosive and distorting effects of immense aggre- gations of wealth that are accumulated with the help of the cor- porate form and that have little or no correlation to the public’s support for the corporation’s political ideas”. 128 Disputes on how to regulate campaign speech in a fair debate “market” seem never settled today. 129 Speech that potentiates a foreign force against the USA is al- ways unwelcome and containable. The Sedition Act of 1918 was to some degree de facto the reincarnation of its predecessor of 1798, except that it added a premise of “when the United States is 121 Patterson v. Colorado, 205 U.S. 454, 459, 462 (1907) (alteration in original). 122 Michael Kent Curtis, Teaching Free Speech from an Incomplete Fossil Record, 34 AKRON L. REV. 231, 237 - 38 (2000). 123 Susan W. Brenner, Complicit Publication: When Should the Dissemination of Ideas and Data Be Criminalized?, 13 ALB. L.J. SCI. & TECH. 273, 322 n.250 (2003). 124 Bridges v. California, 314 U.S. 252, 277-78 (1941). 125 The Federal Election Campaign Act was enacted in 1971. The Act, the ensuing amendments and collateral laws are mostly compiled in 2 U.S.C., Chapter 14 and 26 U.S.C., Chapters 95 and 96. 126 Buckley v. Valeo, 424 U.S. 1, 21, 27-28 (1976). 127 Davis v. FEC, 128 S. Ct. 2759, 2773 (2008). 128 Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 660 (1990). 129 See generally Citizens United v. FEC, 130 S. Ct. 876 (2010); Davis, 128 S. Ct.; Austin, 494 U.S.; Mc- Connell v. FEC, 540 U.S. 93 (2003); FEC v. National Conservative Political Action Comm., 470 U.S. 480 (1985); Buckley, 424 U.S. 74 DIGNITAS n Pravo človekovih pravic at war”, 130 which manifested its intention to dampen ideas toward to enemies. While the “Subversive Activities Control Act applies only to foreign-dominated organizations which work primarily to advance the objectives of a world movement controlled by the government of a foreign country”, the Court did not equalise it with “requirements upon any group which pursues unpopular political objectives or which expresses an unpopular political ideology”. 131 Section 411 of the Patriot Act is another instance of disinterest in unwelcome exotic speech. 132 And regarding election campaigns, “a foreign principal“, and “an individual who is not a citizen of the United States or a national of the United States” “and who is not lawfully admitted for permanent residence” may not participate in a federal election campaign speech by “a con- tribution or donation”, “or an expenditure, independent expen- diture, or disbursement for an electioneering communication”, 133 for their suspicious motives to misguide the US public under the cover of eloquence. Scholars have found that in “times of war”, “it is perhaps only natural that our tolerance for the usual disorder of dissent will decline”. 134 Few commentators argue that the fact that the “truth” filtered out by the “idea market” sometimes harms other values can justify its restriction, because “true” information rather than “false” infor- mation one helps people figure out practical solutions to puzzles. On the contrary, it is a dysfunction of the “idea market” that is not able to find the “truth” or delays the process of such work that prompts people to modulate the speech debate mechanism. Just as a “market failure” happens in an economy where the “allocation of goods and services by a free market is not efficient” in the light of “Monopolies”, “Public Goods”, “Natural Monopoly”, “Externali- ties”, “Bounded Rationality”, “Information Asymmetry” and other theories, 135 the “idea market” should never be presumed as perfect to extricate the expected “truth” accurately and timely for many reasons, such as: (1) Unlike the trade market, a lack of interest in- 130 Compare the Sedition Act of 1918, ch. 75, 40 Stat. 553 (1918) (repealed Mar. 3, 1921) with the Act of July 14, 1798, ch. 74, § 2, 1 Stat. 596. 131 Communist Party of the United States v. Subversive Activities Control Board, 367 U.S. 1, 104 (1961). 132 See supra note 61 and the accompanying text. 133 2 U.S.C. § 441e (2006). 134 Lee C. Bollinger, The First Amendment’s Original Sin, 72 U. CHI. L. REV. 417, 417 (2005). 135 “Market Failure”, WIKIPEDIA, http://en.wikipedia.org/wiki/Market_failure (last visited Sep. 14, 2011). 75 DIGNITAS n Politics and Ideology Beyond the Law of Free Speech centives in some “idea market” may attract few speakers, listeners and speeches to it, which will make the discussions too scarce to produce the desirable truth; (2) speakers are inept or unwilling to make truth speeches for the “market”; and (3) listeners are in- capable of searching for and discerning the truth in the “market”. Critics from foreign countries or antagonists who have motives to topple the majority rule are liable to be regarded as an unwel- come destroyer of the “idea market” because people do not want to have freedom of expression, in any sense, simply rendered as a game that any information (true or false) races in the “market field” to earn a final title that can be evil for people. The distrust of the non-national idea is persistently nurtured by the Chinese Government beneath the flag of patriotism. To frame such nationalist philosophy, laws establish that there is inborn ci- vilisation congruity among Chinese nationalities/ethnics 136 which has been the foundation of their communal benefit and welfare, 137 and all the Chinese nationalities are essentially integrated into one nationality called Chinese Nation/Ethnic 138 in China’s long histo- ry; oppositely, “imperialism” has been the foreign “rule” of “the Chinese people of all nationalities” and should be labelled as the Enemy. 139 , 140 There are enemies of sorts within the group of the Chinese Nation; 141 the political doctrine is that those whose ideo- logies “collaborate with imperialism” should be regarded as more dangerous for their “treason against the fatherland” and “cause 136 Han Nationality is the majority, and fifty-five other nationalities have been recognised by the Go- vernment as minorities, Di Shiyijie Quanguo Renmin Daibiao Daihui Shaoshu Minzu Daibiao Ming’e Fenpei Fang’an [Act of the Quota of Deputies from Minorities for the 11th NPC] (promulgated by the NPCSC, Apr. 27, 2007, effective Apr. 27, 2007) art. 1, 2007 NPCSC GAZ. 371, 371-374. 137 XIANFA pmbl, para. 1, 5 (1982); XIANFA pmbl, para. 6 (1978); XIANFA pmbl, para. 2, 5 (1975); XIANFA pmbl, para. 5 (1954). 138 The appellation of the »Chinese Nation« is invoked in »The March of the Volunteers”, the official national anthem according to the Constitution of the PRC, Chapter Ⅲ, Article 136. And such appellation can also be found in the CPC Constitution, General Programme, Paragraph 1. 139 XIANFA pmbl, para. 5 (1982); XIANFA pmbl, para. 1, 5, 8 (1978); XIANFA pmbl, para. 1, 3, 6 (1975); XIANFA pmbl, para. 1 (1954). 140 Such a »China/Foreign« dichotomy might contradict the Chinese Government’s “upholding” of “Marxism-Leninism”, XIANFA pmbl, para. 7 (1982), that is also exotic. But one argument might be that real “Marxism-Leninism” is “Communism” for the whole of humankind and should not be treated as foreign for any nation including China. For example, during the Chinese-Soviet friendly relationship period, the Constitution of 1954 claimed to maintain an alliance with the Soviet Union, although it was foreign, XIANFA pmbl, para. 6 (1954); while gaps cropped up between them over the under- standing of the “Communism” doctrine, the Constitution of 1975 denounced Sovietism as inimical exotic “Social Imperialism”, XIANFA pmbl, para. 3 (1975), and “Superpower Hegemonism”, id. pmbl, para. 6, and Constitution of 1978 added a new nickname of “Revisionism” for it, XIANFA pmbl, para. 5 (1978). 141 XIANFA pmbl, para. 8 (1982); XIANFA pmbl, para. 6 (1978); XIANFA pmbl, para. 3 (1975); XIANFA pmbl, para. 2 (1954). 76 DIGNITAS n Pravo človekovih pravic of people’s democracy”, and “severely” punished; by comparison, “[f]eudal landlords, bureaucratic capitalists and reactionary ele- ments in general” have opportunities to be “reformed into new men”. 142 Probably, all Chinese nationalities have their own civilisational features that differ from an alien nation, and every civilisation may be self-conscious to resist the intrusion of others into its own identity. 143 But it is difficult to accurately pinpoint which elements a civilisation immanently takes on and cannot allow to be com- promised by the outside; and the political and economic establi- shment is seen as no essential part for the identity of a civilisati- on. 14 4 However, it seems that the Chinese Government, to some degree, successfully labels China’s present politics as “Chinese- characteristics Socialism”, 145 and denominates it as most appro- priately fitting with Chinese civilisation called “China’s specific conditions”, 146 and “represents the development trend of China’s advanced productive forces, the orientation of China’s advan- ced culture and the fundamental interests of the overwhelming majority of the Chinese people”. 147 Besides the assertion that the Chinese Government is identical to the Nation civilisation, all of the disliked ideologies that are democratic such as “capitalism” 148 and “bourgeois liberalisation” 149 are packed into an aggressive and colonial extraneous civilisation like “imperialism” 15 0 and in particular “a system of multiple parties holding office in rotati- on”, “diversification of guiding thought”, “separate executive, legislative and judicial powers”, “a bicameral or federal system”, 142 ZHONGGUO RENMIN ZHENGZHI XIESHANG HUIYI GONGTONG GANGLING [THE COMMON PROGRAMME OF THE CHINESE PEOPLE’S POLITICAL CONSULTATIVE CONFERENCE] ch. Ⅲ, art. 7 (1949) (alteration in original). The Common Programme is conventionally rendered as the virtual first constitutional law of the PRC before the Constitution of 1954. 143 Samuel P. Huntington, The Clash of Civilizations? FOREIGN AFFAIRS, Summer 1993, at 22 (I t is my hypothesis that the fundamental source of conflict in this new world will not be primarily ideological or primarily economic. The great divisions among humankind and the dominating source of conflict will be cultural. Nation states will remain the most powerful actors in world affairs, but the principal conflicts of global politics will occur between nations and groups of different civilizations. The clash of civilizations will dominate global politics. The fault lines between civilizations will be the battle lines of the future). 14 4 Id. 145 XIANFA pmbl, para. 7 (1982). 146 CPC Constitution, general programme, para. 9. 147 Id. general programme, para. 1. 148 XIANFA ch. 1, art. 24 (1982); XIANFA pmbl, para. 5 (1978); XIANFA pmbl, para. 3 (1975). 149 CPC Constitution, general programme, para. 12. 150 »Imperialism« is routinely known as the necessity of »capitalism« by communists, typically in Lenin’s classical work, “Imperialism Is the Highest Stage of Capitalism”. 77 DIGNITAS n Politics and Ideology Beyond the Law of Free Speech “privatization”, 151 and some “systems of laws of certain Western countries” 15 2 are treated as enemies of Chinese civilisation. Patri- otism education is broadly required by all kinds of laws, where it is seamlessly bundled with CPCism and anti-capitalism. 15 3 The sensitivity of the issue makes it impossible to establish a comprehensive poll score for the acceptance of such politics/na- tionalism among the public. But common political logic hints at the considerable probability of its clout on some members of the population: If China has to learn from the Western powers, then it will always lag behind them; and in the worst case, the ‘teachers’ might misguide the ‘student’ by intentionally preaching wrong ideologies. Many Chinese scholars have captured the popular phenomena of nationalism among youth 15 4 and students 15 5 in the places of Internet freelance 15 6 and official media, 157 and in the fi- elds of culture 15 8 and others. 15 9 Some influential dissidents have 151 Quanguo Renmin Daibiao Dahui Changwu Weiyuanhui Gongzuo Baogao [Report on the Work of the NPCSC], 4th Session of the 11th NPC, Mar. 10, 2011, 2011 [3] NPCSC GAZ. item 14, translated in GOV. CN, http://www.gov.cn/english/official/2011-03/18/content_1827230.htm (last visited Sep. 17, 2011). 152 Id. 153 See XIANFA ch. 1, art. 24 (1982); CPC Constitution, general programme, para. 12, 16; Jiaoyu Fa [Edu- cation Law] (promulgated by the NPC, Mar. 18, 1995, effective Sep. 1, 1995) ch. 1, 1995 NPCSC GAZ. 207, 207-209, translated in LAWINFOCHINA. Such patriotism is also a ticket providing access to some professional or educational opportunities, relevant sources cited supra note 98. 15 4 Zhu Yunsheng, Dangxia Qingnian Bingtai Minzu Zhuyi Qingxiang de Weihai Jiqi Pipan [Critique of the Evil of Current Morbid Nationalism of Youth], [2010] 5 ZHONGGUO QINGNIAN YANJIU [CHINESE YOUTH STUDY] 31. 155 Wan Jinqiang & Chen Chao, Hexie Xiaoyuan Shiye Xia Daxuesheng de Minzu Zhuyi Gai Hequhe- cong [Where Should College Students’ Nationalism Go in the Eye of the Harmonious Campus?], [2010] 5-1 KEJIAO DAOKAN [JOURNAL OF INTRODUCTION OF SCIENCE & EDUCATION] 32; Xia Xiaoqian & Liu Zuyun, Zhongguo Daxuesheng de Minzu Zhuyi: Biaoxian Ji Zhengce Yindao [The Nationalism of Chinese College Students: Performance and Guidance Measures], [2010] 4 HUAIYIN GONGXUEYUAN XUEBAO [JOURNAL OF HUAIYIN INSTITUTE OF TECHNOLOGY] 85. 156 Cui Haifeng & Bo Jianhua, Lun Zhongguo Wangluo Minzu Zhuyi de Neihan Ji Zuoyong [On the Connotation and Functions of Chinese Network Nationalism], [2010] 4 SHANXI QINGNIAN GUANLI GANBU XUEYUAN XUEBAO [JOURNAL OF SHANXI COLLEGE FOR YOUTH ADMINISTRATORS] 46; Dong Chengwen, Qianxi Wangluo Minzu Zhuyi Xingqi de Yuanyin [Brief Analysis of the Reasons for the Rise of Nationalism in Network], [2010] 5 JIAMUSI JIAOYU XUEYUAN XUEBAO [JOURNAL OF JIAMUSI INSTITUTE OF EDUCATION] 108; Huang Rihan & Cong Peiying, Qianxi Wangluo Min- zu Zhuyi Yu Zhongguo Guojia Anquan [About Network Nationalism and China’s National Security], [2010] 2 JIANGNAN SHEHUI XUEYUAN XUEBAO [JOURNAL OF JIANGNAN SOCIAL UNIVERSITY] 44; Luo Kunjin, Wangluo Minzu Zhuyi de Minzuxue Jiedu [Comprehension of Network Nationalism in Ethnology], [2010] 4 GUANGXI MINZU YANJIU [GUANGXI NATIONALITIES RESEARCH] 60. 157 Wang Yuwei & Dong Tiance, Minzu Zhuyi: Dangdai Zhongguo Chuanmei de Yizhong Huayu Shijian [Nationalism: A Practice in Chinese Present Media], [2010] 1 XIANDAI CHUANBO [MODERN COMMUNICATION] 28. 158 Chen Shenggang, Shilun Wenhua Minzu Zhuyi Yu Minzu Ningjüli [On Cultural Nationalism and Na- tional Concentration], [2010] 5 HEILONGJIANG MINZU CONGKAN [JOURNAL OF HEILONGJIANG NATIONALITY FORUM] 27; Li Yiyu, Zhongguo Wenhua Minzu Zhuyi Lunlüe [On Chinese Cultural Nationalism], [2009] 5 ZHONGGONG TIANJIN SHIWEI DANGXIAO XUEBAO [JOURNAL OF CPC TIANJIN COMMITTEE UNIVERSITY] 60. 159 E.g., Piao Qiche, Zhongguo Xin Minzu Zhuyi de Fazhan He Tezheng Yanjiu [The Study of Deve- lopment and Character of Chinese Neo-nationalism], [2010] 4 ZAOZHUANG XUEYUAN XUEBAO 78 DIGNITAS n Pravo človekovih pravic commented on several Chinese events of extreme nationalism such as acclaim for the Japan 3.11 earthquake, 160 the anti-protest of the 2008 Olympic torch relay, 161 the anti-compassion of Tibetan independence from the West during 2008, 162 the denunciation of Zhao Wei (a Chinese actress) wearing Japanese ensign clothes, 163 and gloating over the US 9.11 terrorist attack, 164 encouraged by the Chinese Government. While it seems that the civilisation’s nationalism does not so much instate the CPC maxim that Western democracy is not sui- table for China on the heads of people, 165 maybe because for do- mestic politics the public is more persuaded by what the Gover- nment conducts than its preaching, many foreign ideas far away from Chinese people’s daily lives may unluckily encounter an of- fish face of nationalism, and speech advocating a foreign state’s benefit may be more susceptive to native animosity. For example, maybe for the purpose of justifying Liu’s crimination, the Chinese Government has denounced Liu as a traitor who derogated by sta- ting that the Chinese nationality needs the West as colonisers to help its democratisation for at least 300 years, to earn a high salary from the Democratic China Corporation 166 that is patronised by the National Endowment for Democracy (NED), an agent of the American CIA, and prizes and awards from its Western masters; to strengthen such a voice, the Government used little sophism against Liu’s democratic opinion except for simply disqualifying [JOURNAL OF ZAOZHUANG UNIVERSITY] 48; Xue Huiwen & Qin Yi, Dangdai Zhongguo Minzu Zhuyi Shiye Xia de Sixiang Zhengzhi Jiaoyu Yanjiu [Research on Ideological and Political Educa- tion in the Perspective of Modern Chinese Nationalism], [2010] 6 CHUANQI ZHUANJI WENXUE XUANKAN(LILUN YANJIU) [SELECTIONS FROM LEGENDS & BIOGRAPHIES (THEORIES RESEAR- CH)] 81. 160 Wuerkaixi, Xia’ ai Minzu Zhuyi Xingcheng de Yuanyin [Cause of Ultranationalism], WUERKAIXI. COM (Mar. 21, 2011), http://wuerkaixi.com/2011/03/21/420.htm. 161 Wang Dan, Zai Minzu Zhuyi Mianqian Q ufen Zhongguo Yu Zhonggong [Dissecting Chi- nese Nationalism and CPC Nationalism], BOXUN.COM , http://blog.boxun.com/hero/200804/ wangdan/2_1.shtml (last visited Sep. 18, 2011). 162 Wang Dan, Guiyi de Minzu Zhuyi [Uncanny Nationalism], BOXUN.COM, http://blog.boxun.com/ hero/200804/wangdan/4_1.shtml (last visited Sep. 18, 2011). 163 Wei Jingsheng, Zhongguo de Jiduan Minzu Zhuyi Yu Nacui Zhuyi [Chinese’s Ultranationalism and Nazism], EPOCHTIMES.COM (Mar. 28, 2002, 1:24 PM), http://www.epochtimes.com/gb/2/3/28/ n179746.htm. 164 Wang Lixiong, Weapons Cannot Destroy Hatred, MIDDLE-WAY.NET (Oct. 20, 2001, 5:50 PM), http:// woeser.middle-way.net/2011/05/blog-post_04.html (Ogyen trans.). 165 A mini-sample survey found that »55.3% of university faculty were unsure whether the U.S.-style sy- stem of Western multiple parties was suitable for China”, Yue Peng, Wei Chenggong & Dai Gangshu, Minzu Zhuyi Sichao Dui Dangdai Gaoxiao Jiaoshi Sixiang Yingxiang de Diaota Yu Sikao [Survey and Analysis on Nationalism Tide’s Impact on Present University Faculty], [2010] 4 SIXIANG ZHENGZHI JIAOYU YANJIU [IDEOLOGICAL AND POLITICAL EDUCATION RESEARCH] 49, 52. 166 The Corporation’s website is http://minzhuzhongguo.org/Default.aspx. 79 DIGNITAS n Politics and Ideology Beyond the Law of Free Speech his status as a dissident for treason. 167 Moreover, under the guise of the national interest, the Government strictly narrows the influx conduit for foreign speech by prohibiting independent foreign investment in all press and media entities, 168 only allowing it to partly embrace some entertainment and education programmes under the control of domestic entities, 169 censoring and sifting kinds of information from the outside; 170 stipulations do not in- timate that the main target for such exclusion is the liberal idea, bypassing the public discontent about the domestic dictatorship. Nationalism and exclusionism not only cut down the chances for Chinese people to learn about the bountiful and pluralistic speech in the world, and experience the value of the “idea mar- ket” for truth finding, but also dampen their aspirations to learn from the outside, driving up suspicion as to whether free speech is capable of benefitting people in scenarios like the invasion of foreign ideas. Such distrust of the “idea market” covers a wide ran- ge of subjects, not limited to political ideology the Government 167 Zhongguowang, Liu Xiaobo Qiren Qishi [Liu Xiaobo and His Conducts], CHINA.COM.CN (Oct. 26, 2010), http://news.china.com.cn/txt/2010-10/26/content_21202476.htm, available at http://world. people.com.cn/GB/13053039.html; http://no.chineseembassy.org/chn/zyxw/t764250.htm; also see Xinhuawang [Xinhua-Net], Nuobei’er Hepingjiang Shi Xifang Gei Liu Xiaobo de Zhengzhi “Kao- shang” [Liu Xiaobo’s Nobel Peace Prize Is a Dole from the West], XINHUANET.COM (Oct. 15, 2010, 5:11 PM), http://news.xinhuanet.com/world/2010-10/15/c_12664760.htm. 168 See Waishang Touzi Chanye Zhidao Mulu [Catalogue for the Guidance of Foreign Investment In- dustries], (promulgated by the St. Development and Reform Comm’n & Ministry of Commerce, Oct. 31, 2007, effective Dec. 1, 2007) pt. THREE (Catalogue of Prohibited Foreign Investment Industries), ch. X (Art, Sports & Entertainment Industries), 2008 ST. COUNCIL GAZ. item 17, translated in LAWIN- FOCHINA; Guayu Wenhua Lingyu Yinjin Waizi de Ruogan Yijian [Several Opinions on Canvassing Foreign Investment into the Cultural Sector] (promulgated by the Ministry of Culture, St. Admin. of Radio, Film and Television, General Admin. of Press and Publ’n, St. Development and Reform Comm’n & Ministry of Commerce, July 6, 2005, effective July 6, 2005) CHINALAWINFO chl_75592, translated in LAWINFOCHINA. 169 See Catalogue for the Guidance of Foreign Investment Industries, pt. TWO (Catalogue of Restricted Foreign Investment Industries), ch. XII (Education), ch. XIV (Art, Sports & Entertainment Industries); pt. ONE (Catalogue of Encouraged Foreign Investment Industries), ch. X (Education), ch. XII (Cul- ture, Sports & Entertainment); Several Opinions on Canvassing Foreign Investment into the Cultural Sector; Waishang Touzi Dianxin Qiye Guanli Guiding [Provisions on the Admin. of Foreign-funded Telecomm. Enter.] (promulgated by the St. Council, Dec. 11, 2001, effective Jan. 1, 2002, amended Sep. 10, 2008) 2008 ST. COUNCIL GAZ., item 27, translated in LAWINFOCHINA. 170 See Chuban Guanli Tiaoli [Regulations on the Admin. of Publ’n] (promulgated by the St. Council, Dec. 25, 2001, effective Feb. 1, 2002, amended Mar. 19, 2011) 2011 ST. COUNCIL GAZ. item 9, tran- slated in LAWINFOCHINA), Yinshuaye Guanli Tiaoli [Regulations on the Admin. of Printing Indus.] (promulgated by the St. Council, Aug. 2, 2001, effective Aug. 2, 2001) [2001] 27 ST. COUNCIL GAZ. 12, translated in LAWINFOCHINA), Jisuanji Xinxi Wangluo Guoji Hulianwang Anquan Baohu Guanli Banfa [Measures for Sec. Prot. Admin. of the Int’l Networking of Computer Info. Networks] (promul- gated by the Ministry of Pub. Sec., approved by the St. Council, Dec. 16, 1997, effective Dec. 30, 1997) [1998] 1 ST. COUNCIL GAZ. 14, translated in LAWINFOCHINA). Regulations on Internet Information Service in actuality authorise relevant speech supervision agencies to censor any information during its whole public issuance process, and these authorities can and do stipulate many decrees to exclude unwelcome or even susceptive foreign speech. 80 DIGNITAS n Pravo človekovih pravic cares about, and may inundate or dilute people’s dissatisfaction with the Government’s policies of speech restriction. Whoever brags that Chinese-style socialism democracy is supreme will not easily buy or even condole the people who asphyxiate under the dictatorship. 171 However, to indoctrinate that Western-style democracy does little good to China may somewhat persuade the public that the current politics are not perfect but optimum for this country. Classic Marxism holistically repudiates capitalism/Western democracy as fake and hypocritical, essential- ly the rich men’s ruling/dictatorship over the poor. Such dogma is not cogent enough to discourage people from pursuing the dre- am of democracy: If Western democracy, not so good, is better than China’s dictatorship, it can be borrowed. So what the Chinese Government is doing now is to develop new Marxism that can score Western lower, at least no higher, than China: For example, in response to the US 2010 Human Rights Report that analysed the extensive existence of the infraction of human rights on the Chinese Mainland, 172 the State Council Information Office of the PRC published the Human Rights Record of the United States in 2010, which criticised the USA for astoundingly trampling human rights in the fields of “Life, Property and Personal Security”, “Ci- vil and Political Rights”, “Economic, Social and Cultural Rights”, “Racial Discrimination”, “the rights of women and children”, and “US Violations of Human Rights against Other Nations”, 173 to show that evils under US democracy are no fewer than in China in their width and depth. And some prominent scholars in China have published articles claiming that typical democratic models are so bad that even the West has basically abandoned them. 174 171 A poll found that »49.8% of university faculty were unsure whether China should adopt a Democra- tic Socialism model to emend the present one”, Yue Peng, Wei Chenggong & Dai Gangshu, supra note 164, at 52. 172 BUREAU OF DEMOCRACY, HUMAN RIGHTS, AND LABOR, 2010 COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES, PT. 2010 HUMAN RIGHTS REPORT: CHINA (INCLUDES TIBET, HONG KONG, AND MACAU) (Apr. 8, 2011), available at http://www.state.gov/g/drl/rls/hrrpt/2010/eap/154382.htm. 173 S.C.I.O., 2010 NIAN MEIGUO DE RENQUAN JILU [THE HUMAN RIGHTS RECORD OF U.S. IN 2010 (Apr. 10, 2011)], available at http://www.scio.gov.cn/zxbd/wz/201104/t888099.htm 174 E.g., Hu Lianhe & Hu Angang, Xifang Guojia You Duoshao Gao Sanquan Fenli de? [How Many Western Countries Establish the System of ‘Separate Executive, Legislative and Judicial Powers?’], ZHONGGUO SHEHUI KEXUEYUAN BAO [THE NEWSPAPER OF THE CHINESE ACADEMY OF SOCIAL SCIENCES], Feb. 24, 2009, available at http://news.xinhuanet.com/theory/2009-02/24/ content_10881799.htm (the last para. “To sum up, rare Western countries virtually adopt the system of ‘separate executive, legislative and judicial powers,’ and political parties play the most important role in politics; so China should always uphold the leadership of CPC ...” (alteration in original)). Hu Angang is a renowned professor at Tsinghua University, having earned many governmental titles and awards, see Hu Angang [Resume of Hu Angang], TSINGHUA.EDU.CN, http://www.tsinghua.edu.cn/ 81 DIGNITAS n Politics and Ideology Beyond the Law of Free Speech Democratic practice, for its malfunctions, can nurture more animosity than theoretical derogation. In 1993, China amended the Constitution to establish a “socialist market economy” 175 sy- stem, and the amendments of 1993, 1999 and 2004 patently im- proved the strength of the private economy while retreating state ownership; 176 all of those acts have been broadly evaluated as capi- talism democratisation in the economy. But such democratisation is tilted to political powers that can easily enrich themselves by che- aply “buying” state-owned property in the privatisation process, 17 7 or by means of charter-like or monopolisation-style business, 178 to defame itself for its evil dysfunction. 179 Parallel to the economic marketisation, some political democracy transformation has also been tried in low-level organisations. For example, since 1998, ru- ral villagers have had some right to “directly elect members of a villagers committee”, and “[n]o organization or individual may designate, appoint or replace any member”, 180 or even “nominate candidates”; 181 but lax laws indulge some powerful ones to illegally win an election by means such as bribery, violence or nepotism. 182 In addition, with democratic trials in education, for example, the policy of higher education marketisation encounters similar dam- per as in other fields of economic transformation: to partly allow the market to determine the fee for education and to push gradua- tes into the job market for employment, the Government sees that publish/sppm/4620/2010/20101217201750450206566/20101217201750450206566_.html (last visited Sep. 18, 2011). Hu Lianhe is a researcher at Tsinghua University. 175 XIANFA, amend. of 1993, § 7. 176 Id. § 5, 6, 8, 9; Amend. of 1999, § 14, 15, 16; Amend. of 2004, § 21, 22. 17 7 E.g., LANG, LARRY H. P., ZHONGGUOSHI MBO: BUMAN XIANHUA DE XIANJING [CHINA’S MBO: TRAPS COVERED BY FLOWERS] (Dongfang Chubanshe [Oriental Press Pub.] 2006). 178 E.g., DU ZHIGEN & SHEN JUAN, GUANSHANG QIEGUO LU [POWER AND MONEY: HOW THEY STEAL] (Mirrorbooks 2008). 179 For example, it is said that [O ]f the 3,220 Chinese citizens with a personal wealth of 100 million yuan ($13 million) or more, 2,932 are children of high-level cadres. Of the key positions in the five industrial sectors finance, foreign trade, land development, large-scale engineering and securities 85% to 90% are held by children of high-level cadres. Ca rsten A. Holz, Have Chinese Scholars All Been Bought? FAR EASTERN ECONOMIC REVIEW, April 13, 2007 (alteration in original). But China denied such a claim, People-Net, Yizu Xujia Shujü Shi Ruhe Zai Wangshang Wangxia Yi’echuan’e de? [How Has the Fake Data Propagated by Rumours?], PEOPLE. COM.CN (Aug. 15, 2009), http://politics.people.com.cn/GB/1026/9794858.html. 180 Cunmin Weiyuanhui Zuzhi Fa [Organic Law of the Villagers Committees] (promulgated by the NPCSC, Nov. 4, 1998, effective Nov. 4, 1998, amended Oct. 28, 2008) ch. 3, art. 11, [2010] 7 NPCSC GAZ. 649, translated in LAWINFOCHINA (alteration in original). 181 Id. at art. 15. 182 Yu Jianrong, Zhongguo Nongcun Zhengzhi de Xianzhuang He Fazhan Qushi [China Rural Area: Political Situation and Its Trend], pt. Ⅲ, paras. 7-8, CHINAREFORM.ORG.CN (Sep. 30, 2004), http://pe- ople.chinareform.org.cn/y/yujianrong/Article/200409/t20040930_44033.htm. Yu Jianrong is a famous scholar researching rural-area politics, including some sensitive issues there. 82 DIGNITAS n Pravo človekovih pravic the public is dejected by the rise of expensive tuition, low educati- on quality and high unemployment; 183 both the education and job markets are unfairly distorted to benefit powerful students 184 and teachers, and academic corruption is rife in China. 185 By and large, Chinese people have few opportunities to learn or experience what a real and fair democratic system can bring; contrarily, the distorted domestic democracy may push them into deep suspicion of what democracy produces. The Chinese Government classifies political ideologies as three types: “Left”, who are Marxism Purists, intolerant of any Western capitalism de- mocracy; “Right”, who are keen to learn from liberal capitalism; and “Neutral”, who brag about being a balance between “Left” and “Right”, 186 to always find a “great”, “glorious” and “correct” way for the CPC. 187 The “Left” are steadfast anti-Westernists contemptuo- us of capitalism democracy; 188 compared with the “Left” who may be idealists, 189 the “Neutral” are bona fide pragmatists who pur- 183 Cai Wenbo & Ma Jie, Woguo Gaoxiao Biyesheng Jiuye Zhidu Gaige 30 Nian de Huigu Yu Fansi [Retro- spect and Analysis of the Thirty Year History of Chinese Graduates Employment Policies Transformati- on], [2009] 8 XIANDAI JIAOYU GUANLI [MODERN EDUCATION MANAGEMENT] 111; Ruan Minghua, Dui Woguo Jiaoyu Chanyehua de Huigu Yu Fansi [Retrospect and Analysis of China’s Education Indu- strialisation], [2010] 19 SHANGQING [BUSINESS INFORMATION] 105; Zhao Shikui & Wen Maodong, Sanshinian Lai Gaoxiao Biyesheng Jiuye Zhidu Biange de Huigu Yu Xianxing Zhidu de Fenxi [Retro- spect of the Thirty Year History of Graduates Employment Policies Transformation and Analysis of the Current Situation], [2008] 5 ZHONGGUO GAOJIAO YANJIU [CHINA EDUCATION RESEARCH] 2. 184 Guan Erdai Fu Erdai Zhanju Shehui Ziyuan, Qiu Erdai Qiu Shangliu Bukede [The Offspring of the Officials and Rich Control Social Resources, While Those of the Poor Can Hardly Move to the High Level], QILU WANBAO [QILU EVENING], Oct. 2, 2010, available at http://news.qq.com/ a/20101002/001064.htm. 185 See, e.g., Hao Xin, Research Ethics: Questions from China Snag U.S. Trial of Nerve-Rerouting Proce- dure, 330 SCIENCE no. 6005, Nov. 5, 2010 at 741, DOI: 10.1126/science.330.6005.741, available at http:// www.sciencemag.org/content/330/6005/741.summary; Hao Xin, Scientific Misconduct: Retractions Put Spotlight on China’s Part-Time Professor System, 323 SCIENCE, no. 5919, Mar. 6, 2009 at 1280-81, DOI: 10.1126/science.323.5919.1280, available at http://www.sciencemag.org/content/323/5919/1280. short; Hao Xin, Urologist Arrested for Attacks on Chinese Whistleblowers, SCIENCE INSIDER, Sep. 23, 2010, http://news.sciencemag.org/scienceinsider/2010/09/urologist-arrested-for-attacks.html; Yigong Shi & Yi Rao, China’s Research Culture, 329 SCIENCE, no. 5996, Sep. 3, 2010 at 1128, DOI: 10.1126/sci- ence.1196916, available at http://www.sciencemag.org/content/329/5996/1128.summary; Will Clem, Leading Professor Hit with Claims of Embezzlement; Geologist at Chinese Academy of Sciences Arrested over Claims Funds Misused to Pay, in Part, for Lovers, SOUTH CHINA MORNING POST, July 23, 2011, NEWS, at 05, http://www6.lexisnexis.com/publisher/EndUser?Action=UserDisplayFullDoc ument&orgId=574&topicId=100016870&docId=l:1463335502&isRss=true. Besides, “New threads” is a pivotal website seeking to expose numerous Chinese academic scandals. 186 See CPC Constitution, general programme, para. 23. 187 Hu Sheng, Cong Dang de Lishi Kan Zhongguo Gongchandang Shi WeidaⅢGuangrongⅢZhengque de Dang [The History of the CPC Shows that the CPC Is a Great, Glorious and Correct Party], [1996] 5 ZHONGGONG DANGSHI YANJIU [CPC HISTORY RESEARCH], available at http://cpc.people.com. cn/GB/218984/219000/14793619.html. 188 For example, Wu You Zhi Xiang [Utopia Association] is conventionally regarded as a Leftist club whose website, http://www.wyzxsx.com/, fervidly propagates Ultra-Maoism. 189 For example, some opinions on the Utopia website even encourage overthrowing the present Chinese Government for its corruption. 83 DIGNITAS n Politics and Ideology Beyond the Law of Free Speech pose to sustain the present Government and then benefit from it, including many intellectuals. 190 It appears that little compassion of democratic ideology can be gained from “Left” and “Neutral”, yet relying too much on the “Right” to ingenuously carry out de- mocracy also seems over-optimistic: Many Rightists perhaps love democracy mainly for its nature of being an enemy to the Chinese Government 191 rather than the fact that they genuinely enjoy the merit of a democratic mechanism. 192 Distrust of democracy necessarily implies a disinterest in free speech that is only one among different kinds of democratic esta- blishments; worse, China’s unfair political and legal environment twists the “idea market”, which may directly and bluntly dampen the public confidence in its speech-cleansing mechanism. For example, for political speech, currently an active army of Internet commentators is hired by the Government to justify whatever its employer does and controvert assorted criticism in cyberspaces with sophism skills learned in official training; people call them the “Five-Mao Party” because government pay for their predeces- sors was counted as five Mao (equal to half a Yuan) per post in BBS. 193 Under the protective policies of the Government, “Five- Mao” opinions are always prevalent on sensitive issues, dwarfing the function of the “idea market” in finding the truth. For non-po- litical speech, organising an “Internet Water-Army” to falsely and unfairly propagate one’s opinion to create an online atmosphere for one’s benefit is common now; 194 the costs of exploiting such 190 See Wang Dan, Zhonggong Yuyong Xuezhe Zai Taiwan de Zuilian [The Show of CPC-Fostered Scholars in Taiwan], BOXUN.COM, http://blog.boxun.com/hero/200911/wangdan/2_1.shtml (last visited Sep. 18, 2011); Xiao Han, Wumao Leixing Xue [Types of “Five-Mao”], ABOLUOWANG.COM (Feb. 24, 2010), http://space.aboluowang.com/html/09/9509-5342.html. Xiao Han is an eminent in- dependent scholar in China. 191 See generally Li Yuanhan & Li Yue, China’s Officials and Wealthy Hatred, NTDTV.COM (Jul. 27, 2011), http://www.ntdtv.com/xtr/gb/2011/07/28/atext565276.html.-%E3%80%90%E7%A6%81%E9% 97%BB%E3%80%91%E5%AD%A6%E8%80%85%EF%BC%9A%E4%BB%87%E5%AE%98%E4%BB%87 %E5%AF%8C%E4%B8%AD%E5%9B%BD%E5%9F%BA%E6%9C%AC%E7%A4%BE%E4%BC%9A%E5 %BF%83%E6%80%81.html#video. 192 For example, before its rule over China since 1949 the CPC heavily advocated democracy and fre- edom of expression to supplant Kuomintang’s dictatorship, with proposals much like Western ideo- logies, Zhongguo Gongchandang Jiefangqian Yanlun Jingxuan [Selected Speech of the CPC Before Founding the PRC], MOLIHUA.ORG (Apr. 2, 2011), http://molihuaxingdong.blogspot.com/2011/04/ blog-post_02.html. 193 Xiao Han, supra note 189. 194 Zhang Lei & Liu Yang, Wangluo Heishehui Xianxiang de WeihaiⅢChengyin Ji Kongzhi Yanjiu [“Inter- net Gangsterdom”: Evils, Origin and Rectification], [2010] 6 XINWEN ZHISHI [NEWS KNOWLEDGE] 51; Zhang Zuoguo, Cong “Renrou Sousuo” Kan Wangluo Yanlun Ziyou de Heli Xianzhi [Thinking of Reasonable Limitation on the Freedom of Speech on the Internet from “Human Flesh Search”], [2009] 6 XIBU FAXUE PINGLUN [WESTERN LAW REVIEW] 7. 84 DIGNITAS n Pravo človekovih pravic media or prosecution against the mis-exploiting are both so gre- at that such a speech market is necessarily suitable to the power- ful. Unfortunately, the public dissatisfaction with China’s current “idea market” may play into the hands of the Government, embol- dening it to implement its intention of more supervision of me- dia, covered by some academic-like ideas such as establishing an “Internet Real-Name System” for every online speech. 195 In reality, more space for free speech exists in daily lives than in politics, which might be able to hatch a peaceful “idea market” to show the merit of truth finding, and this may be part of Liu’s pur- pose in his article, “Change.” 196 However, the bad thing could be that without legal compulsion, few like to accept debate democra- cy: The “idea market” always dampens your convinced claims, for it is in rare cases that an innovative opinion can return a little acer- bic criticism; the process for the truth is so disappointing because things temporarily accepted by the majority can be false, and even a well-run “idea market” is only capable of redressing its faults and wrongs in the long term, turning out the truth as approximate to its veritable aspects. The right to free speech took hold in the West probably not because people had pre-enjoyed its availability befo- re its establishment, but due to the fact that “democracy is the kind of government we happen to have”. 197 To service the order of free speech, everyone should become tolerant of his critique and le- arn to live with his opponents; he also needs to modestly express what he really knows, avoiding his brashness from triggering irri- tating unreasonable disputes to push the “idea market” toward a risky cliff, broken by anger: These qualities are not easy to obtain by self-consciousness in China where the law on free speech is not faithfully carried out. Critics find that many famed independent intellectuals even release animosity to the free debate mechanism when they or their friends encounter great criticism that seems quite difficult to overcome; 198 more than such a lack of complai- 195 Such proposal is attributed to famous Professor Li Xiguang at Tsinghua University, Liu Xueyi & Wang Yili, Wangluo Yanlun Shixing Shimingzhi Ying Shenzhong [Never Discretionally Implement an “Internet Real-Name System”], [2010] 1 - 1 XINWEN AIHAOZHE [NEWS LOVERS] 10. 196 See Liu, Change, supra note 87. 197 Farber & Frickey, supra note 113, at 1642. 198 Fang Zhouzi finds that many elite liberalism scholars also commit academic corruption as others, and his words ignite great protest from »Rightists« who claim that Fang is a traitor, a spy for the Chi- nese Government and that his private denunciation of academic malpractice is illegal and should be subdued and some of the extremists even hope he will be killed, Fang Zhouzi, Weibo [Microblog] June 19, 21:50 and Jun 23, 14:29, 2011, NEW THREADS (June 23, 2011), http://www.xys.org/xys/net- ters/Fang-Zhouzi/blog/weibo38.txt; Microblog May 14, 16:47, 2011, NEW THREADS (May 27, 2011), 85 DIGNITAS n Politics and Ideology Beyond the Law of Free Speech sance, they are sometimes so confident of their scholarship that they comment on fields they know little about, just as “pseudo- scientists” spread scientific rumours. 199 Under the present politics and official ideology, many pre-eminent dissidents are pessimistic of democratisation budding among intellectuals, 200 or from their cooperation with the Government, disagreeing with Liu’s peacea- ble political viewpoints. 201 Conclusion The political imprint on the law of free speech is clear: “The gre- atest element in the formation of libel law ... was political;” 202 “the indispensability of speech to the political process and the marke- tplace of ideas.” 203 The Chinese Government insists that the expe- rience of the USA teaches the doctrine of “law bred by politics”, 204 http://www.xys.org/xys/netters/Fang-Zhouzi/blog/weibo36.txt; Microblog Apr. 27, 15:21, 2011, NEW THREADS (May 12, 2011), http://www.xys.org/xys/netters/Fang-Zhouzi/blog/weibo35.txt; Microblog Apr. 1, 16:22 and Apr. 5, 16:48, 2011, NEW THREADS (Apr. 12, 2011), http://www.xys.org/xys/netters/ Fang-Zhouzi/blog/weibo33.txt; Microblog Mar. 22, 15:02, and Mar. 25, 15:32, 2011, NEW THREADS (Mar. 26, 2011), http://www.xys.org/xys/netters/Fang-Zhouzi/blog/weibo32.txt; Microblog Feb. 26, 16:53, 2011, NEW THREADS (Feb. 26, 2011), http://www.xys.org/xys/netters/Fang-Zhouzi/blog/we- ibo30.txt; Microblog Jan. 20, 23:47, 2011, NEW THREADS (Jan. 30, 2011), http://www.xys.org/xys/ netters/Fang-Zhouzi/blog/weibo28.txt; Microblog Dec. 29, 18:31, 2010, NEW THREADS (Jan. 6, 2011), http://www.xys.org/xys/netters/Fang-Zhouzi/blog/weibo26.txt;”ⅢNanfang ZhoumoⅢXianzai Zhenshi Duoluo Le" [“The Southern Weekly Is Depraved Now”], NEW THREADS (Nov. 10, 2005), http://www. xys.org/xys/ebooks/others/science/dajia6/yujianrong35.txt. 199 Christina Larson, The People’s Republic of Rumors, FOREIGN POLICY, Jul. 8, 2011, available at http://www.foreignpolicy.com/articles/2011/07/08/the_peoples_republic_of_rumors?page=0,1 (“(We- ibo) used by pseudo-scientists to allege that dam construction impacts the weather” (alteration in ori- ginal)). Fang Zhouzi has criticised many Chinese independent intellectuals as “pseudo-scientists” who try to denounce the Government’s every policy about science even if it is right, supra note 197. 200 See, e.g., Yuan Hongbing, Guanban Zhishi Fenzi Shi Renmin Kunan de Yuanzui [Intellectuals Bred by Government Are the Origin of People’s Adversity], BOXUN.COM (Sep. 4, 2005), http://news. boxun.com/news/gb/pubvp/2005/09/200509040001.shtml. 201 Many democratic activists claimed that the Nobel Peace Prize should not be awarded to Liu, A Letter to the Nobel Peace Prize Committee and Mr. Havel from Overseas Chinese Concerned with Chinese Democracy, 64TIANWANG.COM (Mar. 1, 2010, 4:05 AM), http://64tianwang.com/bencandy. php?fid-13-id-5663-page-1.htm; Second Letter to the Nobel Peace Prize Committee from Overseas Chinese Concerned with Chinese Democracy, 64TIANWANG.COM (Oct. 4, 2010, 2:55 AM), http:// www.64tianwang.com/bencandy.php?fid=13&aid=6545; cf. Liu Xiaobo, I Have No Enemies: My Final Statement, CHINADIGITALTIMES.NET (Feb. 8, 2010, 7:26 PM), http://chinadigitaltimes.net/2010/02/ liu-xiaobo-i-have-no-enemies-my-final-statement/ (David Kelly trans.). 202 THEODORE F.T. PLUCKNETT, A CONCISE HISTORY OF THE COMMON LAW 489 (5th ed. 1956), quoted in Brenner, supra note 122, at 287. 203 DAVID P. CURRIE, THE CONSTITUTION IN CONGRESS: THE FEDERALIST PERIOD 297, 1789-1801 (Chicago 1997), quoted in Bollinger, supra note 133, at 422 n.13. 204 Jiang Bixin, Meiyou Duli Yu Zhengzhi de Sifa [No Judicature Independent from Politics], LEGAL- DAILY.COM.CN (May 18, 2011, 9:13 AM), http://www.legaldaily.com.cn/commentary/content/2011- 05/18/content_2664209.htm?node=22528 (“Judicature should be tied with political strength ... accor- ding to Owen M. Fiss ... and according to Richard Allen Posner who affirmed that the Supreme Court of the USA was a political court ...”). Jiang Bixin is an Associate Chief Justice of the Supreme People’s Court of the PRC. Also see Zhang Jun, Shenpan Gongzuo Jiyao Jiang Fazhi Yeyao Jiang Zhengzhi, 86 DIGNITAS n Pravo človekovih pravic and it convinces people that the Constitution enshrines the CPC dictatorship as a “Chinese Characteristics” democracy better than in the West. Then for the “Long Life” of the CPC, the “idea market”, as a common area for latitude in the West, should have little spa- ce in China for its nature of anti-dictatorship; particularly, when it calls on the market’s strength to magnify some ‘sensitive’ issues that may encourage acts to topple the Government, such “clear and present danger” should legalise governmental quenching. Hence, political speech liberty in China basically occurs through the private conduit of appealing to the Government, 205 while non- political ideas are allowed rather than encouraged to be debated in the “idea market”. 206 People may wish for Chinese people to nurse a fair “idea mar- ket” in the cramped space left by governmental censorship, but the Government is vigilant to avert its formation. 207 Official mainstay ideologies such as totalitarianism and nationalism ‘bear’ the atmo- sphere of the “idea market”; the distorted and limited democracy manipulated by the Government dims the merit of truth-finding, making sceptical investors stampede from the “market”, including some elite open-minded intellectuals. Even optimists like Liu beli- eve China’s peaceable democratisation will be a long process. 208 The history of free speech in the USA also bears witness to the latitude twisted by partisan politics and varied liberal ideologies even if the constitutional clause for it is without change, but there has always been a mainstream to converge all these offshoots: that is democracy whose nature caters to free speech. 209 And through such a long democratic history, the “idea market” does bear fruit Faguan Jiyao Zuo Falüjia Yeyao Zuo Zhengzhijia [Law and Politics Both Matter for Judicature, and a Judge Should Be a Jurist as Well as a Politician], RENMIN FAYUAN BAO [PEOPLE’S COURT NEWS], Sep. 16, 2008, available at http://www.chinacourt.org/public/detail.php?id=321579 (“The CPC leads everything ... as in the West, the judicature is to serve politics ... and parties ...”). Zhang Jun is also an Associate Chief Justice of the Supreme People’s Court of the PRC. 205 Cf. Martin, supra note 118, at 160-66 (“Petitions: The Federalist alternative to political speech”). 206 For implementing its anti-sensitive speech laws supra note 98 and 169, pre-censorship is the most efficient method used by the Chinese Government, which kills many non-sensitive words together with sensitive ones. 207 See Zhou Benshun, Zou Zhongguo Tese Shehui Guanli Chuangxin Zhi Lu [The Way of “Chinese Characteristics” Management Innovation], [2011] 10 QIUSHI [ONLY TRUTH] 37, available at http:// www.qstheory.cn/zxdk/2011/2011010/201105/t20110513_80501.htm (“Be careful not to stumble into the trap of so-called ‘civil society’ which is vended by some Western countries to us ...”). Zhou Bens- hun is Director of Secretariat of the Committee of Politics and Law under the CPC Central Committee, and Deputy Director of the Central Committee for Comprehensive Management of Public Security. 208 Liu, Change, supra note 87. 209 By contrast, changes of Chinese leaders and governmental policies do not rock their foundation of autocracy. 87 DIGNITAS n Politics and Ideology Beyond the Law of Free Speech for the people such as the evolution of the free speech law itself: many old-time, anti-latitude stipulations are being thrown out of the “market”. While China’s law on paper metes out no less freedom of expres- sion than in the USA, its efficacy in action is greatly cut down by politics and ideology. Is such law Janus-faced? The Chinese Go- vernment does not think so as it always claims that liberties in law are developing in history, in China as well as in the West. That is right, and China can easily check the earlier history of the USA to find some similar restrictions on speech for justifying its current policy, as Professor Gao has done. Yet that is not enough: Wrongs forsaken by others should not be re-used by you as reasons for your wrongdoing; moreover, even the premature speech freedom of earlier America guarantees a fair debate on a democratic chan- ge of the Government, like Liu’s. 210 The earlier American speech curbing law was still based on democracy, far away from the si- tuation in present China, and then a good sophism for China’s ‘quiet’ policies should perhaps be built on rhetoric like “Chinese- characteristics dictatorship is a new form of democracy”. But to garble the centuries-old conception of “democracy” by patching on “dictatorship”, which the Chinese Government is doing, seems just like a case of black humour. 210 For example, the Sedition Act of 1798, Section 3 allowed a speech’s “truth of the matter” as a defen- ce of “lawful” latitude, Act of July 14, 1798, ch. 74, § 3, 1 Stat. 597.