“Punishment fits the crime”: China’s law expert on jailing the Nobel Peace Prize winner, and our thoughts (Part 2)

November 6, 2010MeganOne Comment

Previous part:

Cathy G.: If you have read my previous post which is a translation of Professor Gao Mingxuan‘s defense of jailing Liu Xiaobo, you will expect my refutation today, which will be merely based on logic and law, rather than on political or ideological divide.

Though I never went to law school, I did take one semester of media law class for my master’s program.

The article uses one artifice to defend Chinese court’s decision to convict Liu Xiaobo: citing a U.S. supreme court case and “the clear and present danger test.” Basically, Professor Gao tries to convince readers that even the United States, which prides itself on the freedom of speech its citizens enjoy, designs its own legal standard to make sure everyone toes the line and to pass on conviction whenever their speech poses a clear and present danger. He cites two U.S. supreme court cases Schenck v. United States and Abrams v. United States in which the test was proposed and applied to penalize the speech at issue. He even suggests that restriction of freedom of speech in the U.S. is even more stringent than in China. (“Interestingly, the case of ‘falsely shouting fire in a theater’ that the U.S. Justice mentioned, if causing no casualties or seriously public order disturbance, would be at most a public nuisance in the eyes of Chinese people, but in the United States it constitutes a criminal offense,” Professor Gao said.)

What Professor Gao did not tell us, however, is that Schenck and Abrams were later overruled by Brandenburg v. Ohio .

United States uses a common law system. When a case, which has similar legal issues with earlier cases resolved by court (a precedent), arises, the court is bound to use the same reasoning to rule the case to ensure fairness and justice and avoid double standards. But in ordr to prevent mistakes or inconsideration made in earlier cases from being repeated over and over again, the court has the power to make a different decision to create a new precedent.

The ruling of Brandenburg v. Ohio in 1969 reversed Schenck and Abrams. The Court now held that a person’s words were protected as free speech as long as they did not directly incite unlawful action. So, the defendant Clarence Brandenburg, a KKK leader who made public speeches about seeking vengeance on ‘niggers,’ ‘Jews’ and those who support them, and announced plans for a march on Washington to take place on America’s Independence Day, was found not guilty. And the speech, preposterous and inflammatory as it may sound, was held by court to be not directed or likely to incite imminent lawless action. (See reference link below)

From then on, all cases that involve questionable speech have to follow the decision in Brandenburg v. Ohio and use the test of “imminent lawless action” test. That is, the speech in question is punishable only if it is likely to incite imminent lawless action, at least more likely than Brandenburg’s is.

Even if the clear and present danger test were still in play. Its several indications would have exculpated Liu Xiaobo.

First of all, the circumstances. Both cases, Schenck and Abrams, took places at a time when the United States was at war with other nations, and the court ruled that it was the wartime that made the speech at issue merit scrutiny and proscription. “when a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right.” In other words, the court held, the circumstances of wartime permit greater restrictions on free speech than would be allowable during peacetime. Considering China is at war with no nation, Liu Xiaobo’s speech could have failed this test in this aspect.

Another indication is the intent. Does Liu Xiaobo mean to bring about “substantive evils” by his remark that deserves conviction? We all know from Liu’s publication that Liu is an staunch advocate for democratization of China and ending of authoritarianism. Even by the most strict standard he cannot be labeled as a violent sociopath. Nevertheless, China reached the conclusion that what Liu did are “substantive evils” by arbitrarily equating “anti-government” with “anti-social,” and thereby suppress dissident opinion. Even though Liu Xiaobo never intended to do any harm to the society, his intent is illegal and dangerous in the eyes of Chinese rulers and judges.

Besides the legal myths to hoodwink the public, Professor Gao also deployed a lot of logical fallacies and rhetorical devices. In the previous article, he proves the proposition under dispute without any certain proof, making it sound self-explanatory; he offers such a huge amount of information to substantiate his argument that it sounds plausible and well-founded, and is easily bought by readers who didn’t do fact-checking; he misrepresented Liu’s point of view. Here is an incomplete list of examples:

Judging by what the Beijing First Intermediate People’s Court and the Beijing Municipal Higher People’s Court recognized as the facts, Liu Xiaobo…attempting to incite subversion of the current regime.

This is an irrelevant conclusion. He has already recognized the courts’ finding and conclusion of “attempting to incite subversion” as facts and uses them to defend courts’ decision and to accuse of Liu. But the court might be wrong!

‘China remains the only large world power to still retain an authoritarian system that so infringes on human rights, resulting in continuous human rights disasters and social crisis.’ These are clearly rumors, libel and slander.

How clearly? Professor Gao did not even bother to repudiate the “rumors” before he labeled it “rumors.”

Moreover, Liu has long been engaging in subversive activities. In January 1991, he was found guilty of counter-revolutionary propaganda…From September 1996 he was sent to a labor education camp for three years because of disturbing the social order.

These so-called subversive activities are also false charges pressed on Liu Xiaobo.

Professor Gao added that in Western countries, cases of penalizing sedition have occurred. In the last century, the United States …

This is a typical example of proof by verbosity. He overwhelmed the reader with a host of examples in Western countries, while not noting that these cases are outdated, overruled, or irrelevant.

This fully exposed his purpose of instigating the so-called “new force” to overthrow the regime. These remarks have exceeded the scope of general critical comments, and have posed real harm to the society.

Throughout the article, Gao sums up Liu’s call for a new regime as social harm. But logically, a new regime might be beneficial to the society and the people.

Liu has written and published inflammatory articles on the Internet, and collected signatures. It is no longer a matter of speech; rather, it is an act prohibited by the Criminal Law.

This argument is way too farfetched. By Gao’s definition, speech can only be said. If that was the case, then Schenck’s distributing the pamphlets would’ve also been act instead of speech. But what is the point of this hairsplitting? If you punish people for their opinion, you runs against the spirit of freedom of speech.

Now you can see Gao’s defence seems reasonable at the first glance, but in fact does not hold any water if you mull it over. One thing is certain, Professor Gao is not a impostor expert or an idiot. He understands what he is talking about. He is but a mouthpiece who cannot afford to mess with the authorities.


Cathy G.: Please stay tuned for Final Part of the article, in which I will write more about my thoughts on the First Amendment and freedom of speech in China, or lack thereof.

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