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The Anti-Seditious Speech Debate and Media Law Reform
Thomas E. Kellogg, The Jamestown Foundation, China Brief
6/21/2007

It is against this backdrop that the recent debate over leftist Chinese People's Political Consultative Congress (CPPCC) delegate Yu Quanyu's proposed anti-seditious speech law must be understood. In China, the past is treated selectively, with certain events serving as material for political propaganda, while others treated as sacred cows, forbidden to be discussed or even mentioned. The Party, for instance, regularly circulates its heavily edited version of the Sino-Japanese war and its victory over the Nationalists, and yet, forbids nearly all in-depth discussions of the horrors of the political purges of the 1950s or the Cultural Revolution. Although millions of Chinese still remember those days, and in many cases still remember loved ones lost to Mao's political mania, the subject of what happened and why is seldom discussed in the media and is subject to deep elisions and emendations in the nation's history textbooks.

Yu Quanyu's proposal sought to further strengthen the government's already tenacious grasp over history. Interestingly enough, however, Yu's ideas were met with skepticism, if not outright criticism, by various voices in the state-run media. Moreover, despite Yu's continued push for action, his proposals were met largely with indifference. While the debate over the incident does indicate that media commentaries can play a useful role in batting down regressive proposals, what was nonetheless missing from the debate—including any serious push for more wide-ranging media law reforms—was just as telling as the criticisms against Yu's proposed law.

The debate began on March 4 when Yu Quanyu, a longtime propagandist, floated the idea of a new "anti-seditious speech" law. Speaking to reporters after a CPPCC meeting, Yu argued that the new law was needed to ensure that scholars who "twisted historical facts" could be punished. According to Yu, a new law would "force those scholars and (members of) the media" who have "reversed the verdict" on certain key historical moments to "face responsibility and punishment in accordance with the law" (Wen Wei Po, March 5). Yu mentioned the Opium Wars and the Japanese atrocities during World War II as examples of subjects on which more stringent legislation was required.

Yu, 72, is no stranger to bare-knuckle politics. A longtime leftist, Yu served as the head of the Party flagship newspaper People's Daily in the early 1990s and later served as the vice-president of the Chinese Society for the Study of Human Rights, a government-run organ that releases an annual rebuttal to the China chapter of the U.S. Department of State's human rights report [1]. Yu also authored the forward to the bestselling mid-1990s nationalist tract China Can Say No.

In an interview in mid-March, Yu hinted that he was receiving help from a small group of unnamed legal experts on drafting a bill, but, in the absence of any specific text, it is difficult to parse Yu's proposal in any significant way [2]. Of course, the word that he used, hanjian, which can be translated either as "seditious" or more literally as "traitor to the Han," is not a legal term and is in many ways the opposite of the precise and narrowly-tailored language needed to ensure that truly seditious speech is clearly separated from protected political speech.

Yu’s justification of his proposal was somewhat weak, given that it relied upon an inaccurate parallel with U.S. free speech law. Yu had argued that yelling out "overthrow Bush" was punishable speech in the United States, when in fact such speech is, in most circumstances, religiously protected. Yu also made references to European laws on Holocaust denial, again an imperfect parallel, if only because the European states that do enforce such laws also have strong free speech protections, ensuring that such laws cannot be used for political purposes.

More interesting than Yu's proposals were the responses they generated. One of the first comments on Yu's proposal came from an editorial in the China Economic Times, which argued that such a law would infringe upon the free speech rights protected by the Chinese constitution. “Discussion among the people,” the newspaper noted, even on sensitive issues like China’s experience during the Opium Wars, “is…a sign of greater multiplicity and political tolerance in Chinese society.” The paper argued that Yu’s ideas should be rejected as a potential threat to that discussion [3].

An editorial in the China Youth Daily also criticized Yu's proposal in similar terms, emphasizing the importance of public debate, but also couching its points in terms of academic freedom. According to Zhi Ling, the author of the China Youth Daily piece, disagreements over academic issues should be handled not by law, but instead “purified” through autonomous, self-regulating academic debate. Zhi closed with a reference to Article 47 of the Chinese constitution, which protects the right to engage in scholarly research and artistic and intellectual endeavors.

Perhaps the most comprehensive and articulate critique of Yu’s proposal came from one of its likely targets, the intellectual historian Yuan Weishi. Yuan had reason to speak out against the proposal: as one of China’s leading historians, Yuan has long advocated a rigorous, open, and inquisitive approach to the study of history. Yuan has insisted repeatedly in his writings and public commentary that an objective, truth-telling approach is an essential element of modernization. If scholars give up their objectivity, then they cease to be “independent academics” and instead become “propaganda tools.” “In modern society,” Yuan argues, “scholars and intellectuals are an independent group, in a separate rival camp from those, like government officials, who engage in public administration, and the industrialists and others in the sphere of economic administration. Their interaction helps maintain the normal operation of society. Scholars should be repositories of thought and intellectual knowledge, and should enlighten the other groups, rather than becoming mere pliant tools in their service. If they are voluntarily or forcibly displaced from that role, then the repercussions can often be catastrophic" [4].

Throughout his work, Yuan constantly invoked the concept of "modernism" and has pointed to free and open debate and tolerance for divergent views as key hallmarks of a modern society. "Pluralism," Yuan noted, "is a foundational concept of modern culture, and has become an organizing principle of modern societal systems. Violations of academic and intellectual freedom are a violence that cannot be tolerated in modern society, and was long ago condemned by modern citizenry" [5].

Yuan elaborated on his views in a January 2006 essay entitled “Modernization and History Textbooks,” published in the Freezing Point weekly supplement to the China Youth Daily. In that essay, Yuan criticized a Chinese history textbook used in middle schools across China, pointing out that it was rife with distortions that paint China as a passive victim of imperial aggression, whitewashing both instances of Chinese collaboration and the efforts of some Westerners to come to China’s aid. The product of this over-emphasis on victimhood is a sort of embittered nationalism, one that China’s government has repeatedly stoked in recent years.

Near the end of “Modernization and History Textbooks,” Yuan contrasts an impassioned nationalism with a more “objective” and analytical patriotism. “It is obvious that we must love our country,” Yuan writes. “But there are two ways to love our country. One way is to inflame nationalistic passions. Traditional Chinese culture had deeply ingrained ideas such as ‘Chinese and foreigners are different’ and ‘if you not my kind, then your loyalties must be opposite to mine.’ Our thinking is still poisoned by them today. The latest edition is this: if there is a conflict between China and others, then China must be right; patriotism means opposing the other powers and the foreigners. In the selection and presentation of historical materials, we will only use those that favor China whether they are true or false. The other choice is this: we analyze everything rationally; if it is right, it is right and if it is wrong, it is wrong; calm, objective and wholly regard and handle all conflicts with the outside" [6].

Even in the absence of Yu's proposed anti-sedition law, Yuan's piece led to serious trouble. After the article was published, the longtime editor of Freezing Point, Li Datong, was removed from his post, and the paper was forced to run a propaganda-style critique of Yuan's original article. Freezing Point was temporarily closed down, reopening a few weeks later under new editorial leadership.

Yuan's take on Yu's proposal mirrored his own views about the role of historical debate in modern society. In an interview with the Guangzhou-based Southern Metropolis Weekly, Yuan criticized the "extreme nationalist mentality" of Yu's proposal, and implied that such a law was antithetical to a modern society. Yuan also emphasized the fact that a significant amount of public commentaries came out against Yu, citing criticism of Yu's proposal as a sign of progress. “China has won a few points for its international image through this argument,” Yuan noted. “Why? Because the first voice criticizing Yu Quanyu was the China Economic Times, a paper sponsored by a department under the State Council, a paper run by the Chinese government. And there also was the China Youth Daily. On the second day, Southern Metropolis Daily also published an opinion piece refuting him. Papers from the national to local levels published commentary, and all of them trumpeted that this was a mistaken political viewpoint. Online there were many different opinions, but the majority championed the cause of free speech and demonstrated a valuable rational attitude. Through so many years of reform and opening up, through the wind and rain, the ability of the Chinese people to judge right and wrong has increased markedly. This is something to be happy about" [7].

While it was helpful for Yu's critics to point out that the anti-seditious speech proposal was deeply flawed, and even to praise the Chinese media for publishing critiques of the proposed law, what was missing from the public debate was any discussion of the current strict limits on public discussion of China's charged past. What the commentators failed to mention was that, sadly, Yu's proposed law, as overbroad and detrimental to public debate as it was, would have largely been superfluous: China already has a vast network of laws, covering everything from the neighborhood leaflet to websites and blogs, that restricts discussion of both sensitive historical incidents and deep-seated contemporary problems.

Although public debate in China, aided by a small but growing civil society, a tech-savvy online commentariat, and an ever-more commercialized media, has grown more robust during the past few decades, there has been virtually no progress on creating a legal framework that protects rather than prohibits free speech. Instead, the government has gone in the opposite direction, extending the legal framework that controls “old” media to new media almost as soon as a new medium springs up.

In recent years, there has been a small but significant increase in the government's assertion of control over the media. The Guangzhou-based Southern Weekend, long the symbol in the West of greater media openness, has been reined in, and a number of other brand-name publications, including The Beijing News, Caijing and of course Freezing Point, have all experienced tremors of a greater or lesser variety over the past two years.

Yet this increasing aggressiveness on the part of the government has been matched by a growing sense of professional responsibility and identity on the part of many journalists. When prominent Southern Metropolis Daily executives Yu Huafeng and Li Minying were jailed on what many observers believed were trumped-up charges of economic malfeasance, more than 2,000 journalists wrote a public letter in June 2005 urging the government to release the men. Individual victims of censorship are also taking a more active stance: when her book on the lives and times of various Beijing Opera stars was banned by propaganda authorities, Beijing-based intellectual Zhang Yihe complained publicly, and, in a rare move, named General Administration of Press and Publications official Wu Shulin as the one responsible for pulling her book off the shelves.

What all of these incidents of repression, sometimes followed by words of protest, have in common with Yu Quanyu's modest proposal is that they all illustrate an important gap in Chinese law: at present, there are no legal standards to separate protected political speech from speech that is legally actionable. Chinese legal academia is rich with deep discussion of free speech law in the United States, Europe and elsewhere, and Chinese judges are increasingly aware of the ways in which constitutional norms are used to measure the appropriateness of government legislation. This increased academic knowledge, however, has yet to translate into a real public debate over how to formulate these key concepts into legislative reality.

It is indeed a form of progress when the state-run media publishes editorials criticizing retrograde proposals like the one floated by Yu Quanyu. Yet these same media outlets seem to lack the ability to put forward more progressive proposals of their own, much less critical of the restrictive laws already on the books. It may be time for the government to allow for a more open debate on media regulation: if Yu Quanyu can voice his opinion on China's largest political stage, then those in favor of progressive reforms should be allowed to advance their own proposals as well.

Notes

1. Background taken from Southern People Weekly, translation courtesy of Danwei blog, available online at: http://www.danwei.org/scholarship_and_education/yu_quanyu_the_man_behind_the_r.php.
2. Southern People Weekly, translation courtesy of Danwei blog, available online at: http://www.danwei.org/scholarship_and_education/yu_quanyu_the_man_behind_the_r.php. Although there was no draft text, Yu did make the following comment as to the substance of the law: "[A]pologists for the actions of China's invaders since the Opium War in 1840 be given up to 10 years in prison; apologists for the actions of China's invaders since 1931…should be given up to 20 years."
3. Translation courtesy of CMP, available online at: http://cmp.hku.hk/look/article.tpl?IdLanguage=1&IdPublication=1&NrIssue=1&NrSection=100&NrArticle=807.
4. Yuan Weishi, Modern China Research, blog posting, December 8, 2005. The posting was originally published in the Chinese-language Hong Kong-Canton Daily News (Au Gang Xinxi Bao), May 10, 1998.
5. Yuan Weishi, “Speak the truth, speak your own mind,” essay dated June 12, 1997, posted on Yuan Weishi's blog.
6. Yuan, "Modernization and History Textbooks," China Youth Daily, Freezing Point supplement, January 11, 2006. Translation courtesy of ESWN blog.
7. Yuan Weishi interview with Southern Metropolis Weekly. Translation courtesy of Danwei, available online at: http://www.danwei.org/media_regulation/yuan_weishi_yu_quanyu_treason.php.

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