Thursday, March 5, 2015

Article 293: Deeming Free Speech Disorder in Internet Space

Prior to his arrest for "creating a serious disturbance," Pu Zhiqiang (bottom right) joins others to discuss June Fourth at a private home in Beijing.

In September 2013, the Supreme People’s Court (SPC) and Supreme People’s Procuratorate (SPP) jointly issued a judicial interpretation addressing a number of issues related to criminal speech online. That interpretation held that use of information networks “to berate or intimidate others,” “to disseminate false information . . . that one has either invented or clearly knows to be fabricated,” and “to organize or incite others to disseminate [such information]” should be punished under Article 293 of the Criminal Law, “creating a serious disturbance.”

This marked a major elaboration of Article 293, which is also known by its literal translation, “picking quarrels and provoking trouble.” Prior to the interpretation, the offense had targeted a variety of behaviors deemed to be disruptions to social order, such as fighting, looting, throwing rocks or refuse at vehicles or buildings, or otherwise stirring up trouble in public spaces. Now, the interpretation seems to have expanded the definition of “public space” to include online space, treating it not only as a platform through which to incite others to disrupt social order but as a kind of public space itself that can be thrown into disorder by certain kinds of acts.

Since September 2013, a growing list of Chinese people have been detained or charged for speech-related incidents under the provisions of Article 293. Perhaps the most well-known is the crusading rights lawyer Pu Zhiqiang, whose initial detention for “creating a serious disturbance” appeared to be connected to a private meeting to discuss issues related to June Fourth. According to recent reports, however, it appears that the authorities may also be trying to prosecute Pu under Article 293 (in addition to even more serious speech-related charges, including “inciting subversion” and “inciting splittism”) for a series of items he posted on social media.

Prosecutors in Zhengzhou, Henan, also recently presented an indictment for “creating a serious disturbance” against Yu Shiwen, a former student leader during the 1989 democracy movement who was arrested last year in connection with a public memorial commemorating former leaders Zhao Ziyang and Hu Yaobang and those who died in the June Fourth crackdown. The authorities appear to have been unaware that the memorial had taken place until Yu and other participants posted photographs online and gave interviews to overseas media.

Critics have argued that the judicial interpretation by the SPC and SPP is improper because by significantly expanding the scope under which Article 293 can be applied, it has ventured into the jurisdiction of China’s legislature. Peking University’s Zhang Qianfan recently took up the argument from a position defending the freedom of expression. In a blog post that has been widely republished on numerous Chinese-language websites, the liberal constitutional law scholar warns that overemphasis on preventing disorder in virtual space risks undermining what is not only a fundamental human right but also an essential component of ensuring proper governance. He describes Article 293 as a “pocket crime”—an offense so vaguely defined that nearly anything can be stuffed into it—and warns that, unless the boundaries are tightened up, even more Chinese citizens are likely to fall victim to arbitrary and abusive uses of offenses like these.

Don’t Let “Creating a Serious Disturbance” Become a “Pocket Crime”

Zhang Qianfan
February 5, 2015

Over the past year, the offense of “creating a serious disturbance” (Article 293 of the Criminal Law) has been applied more and more often in cases involving speech by citizens. Legal scholars are widely concerned that this offense has already become a “pocket crime” whose borders can be extended at will. This not only violates the principles of “governing the country in accordance with the law” and “governing the country in accordance with the constitution” that were promoted at the Fourth Plenum of the Eighth Chinese Communist Party Conference; it will also inevitably lead to serious abuses of state power and an extreme restriction of citizens’ freedom of expression that is protected under Article 35 of China’s constitution.

In a certain respect, we can consider the state as a supremely powerful Hobbesian “Leviathan,” but this Leviathan does not have a will of its own. On the contrary, it is a product of human reason. We establish the state and invest it with such huge powers so that it may control the irrationality of private individuals and prevent their using violence to harm others. At its most basic, the function of the state is to use its monopoly of lawful violence to control the unlawful violence committed by private individuals. The criminal law is the main means by which the state carries out this basic function, and police are the specific force through which the criminal law is enforced. You could say that it is a limb of the Leviathan. For rational people, limbs must be controlled by the brain. If the brain loses control, then the limbs can move wildly on their own in a dangerous manner. The same is true with the state.

What is the “brain” of the state? The “brain” of the state is the public reason expressed through its laws. In a healthy state under ordinary conditions, law exists to serve the common interests of all people. But what exactly is the “common interest”? What sort of policies, laws, or institutions bring the greatest happiness to people? There can be no single answer to these questions, and since each person has freedom of thought and expression, no person can claim that he alone possesses the truth. So-called public reason is a social consensus that is formed in the course of free discussion, meaning that free expression is an institutional precondition for the production of public reason. Of course, total consensus is impossible, because no viewpoint can secure the agreement of every single person in society. We must be able to cast votes to determine the majority position at any time and use this as the basis for the laws that govern us. Only such laws can be considered “good laws” that express public reason. Public reason of this kind is bound to be flawed and can only attain perfection through practice. But it is inevitably far superior to any private individual reason—because humans are rationally self-interested, individual reason can only serve particular individuals. Only public reason formed in the context of free expression can serve the entire society.

We can only live in a reasonable state if we enforce good laws, implement the rule of law, and allow our public reason “brain” to control the limbs of the state. On the other hand, if the limbs take control of the brain and prevent the brain from thinking in a normal way—or if individual reason is allowed to replace public reason and the machinery of the state is used to suppress and “manage” speech—then the “arms control the brain” and the state cannot operate normally. Arms can only control arms. State violence can only be used to control violence by private individuals and not to govern speech.

Of course, if speech truly threatens to incite an immediate, obvious, and serious danger—for example, if a person spreads panic in a crowded place and causes a stampede—then that sort of speech should be liable for criminal responsibility. But so long as there is no such “clear and present danger” and there is still time to clarify the truth through additional discussion, free speech should be allowed to continue without state power intervening to impose silence.

As long as the state’s “brain” is still capable of ordinary thought, the “arms” must not be allowed to control the “head.” The reason is simple: arms can never be as good at thinking as the head. Likewise, police are no more capable than ordinary people of correct judgments about matters of right or wrong or expertise. When the arms control the head, coercive power is substituted for public reason.

If a criminal offense becomes a “pocket crime” that can be expanded or contracted at will such that it becomes a way of punishing citizens’ speech, then the “arms are controlling the head.” The fourth clause of the offense of “creating a serious disturbance” refers to “stirring up trouble in a public place that creates serious disorder in [that] public place.” Since the Supreme People’s Court and Supreme People’s Procuratorate have expanded the meaning of “public place” to include online space, this clause has often been applied in cases involving citizens’ speech. Looking purely at the text of the statute, there’s no big problem with this offense. Whether it’s speech or acts, if there truly is “serious disorder in a public place,” then the person(s) responsible should be held criminally liable. The problem is how to define “serious disorder in a public place” and, particularly, disorder as applied to the “public space” of the Internet. The Internet is a platform for free expression and it is normal for there to be different opinions expressed there. “Order” in this kind of space connotes a kind of place where one person has all the say. In the “public space” of the Internet, it’s practically impossible for there to be “serious disorder” in the sense of the criminal law. Does crude, acrimonious, and radical online speech that leads to widespread arguments or even abuse constitute “creating a serious disturbance”? Even if you believe in the idea that there is “verbal violence” online, you should not use physical violence to counter verbal violence.

Under ordinary circumstances, the criminal law should only apply to actual violence that takes place in the real world, not virtual “violence” that takes place in the online world—with the exception of online speech that can actually cause “serious disorder in a public place” in the real world. If online speech that does not satisfy this condition is treated as “creating a serious disturbance,” then it is another case of the arms controlling the head.

The analysis above does not simply apply to “creating a serious disturbance” and can be applied to all other “pocket crimes” as well. The unlimited expandability of “pocket crimes” not only restricts citizens’ right to free expression but also can easily lead to abuses of power by local authorities. In China, no matter whether it’s the constitution, laws, or central policies like the Fourth Plenum decision, all are used by central authorities to regulate the behavior of local authorities at all levels. But if the constitution is not implemented fully and laws become pocket crimes to be interpreted arbitrarily by local authorities, then not only is the law unable to serve any normative function but it can actually become a powerful weapon with which local authorities can abuse their power.

For example, in Henan a rights defender named Jia Lingmin provided free legal advice for many years to families who had been forcibly evicted from their homes. She was warmly welcomed by people all over for spreading legal information concerning land seizures and forced evictions. But because she was a thorn in the side of the local authorities, she was framed on charges of “creating a serious disturbance.” However, not only did Jia’s speech not cause any “serious disorder in a public place,” it played an extremely positive role by protecting the lawful rights and interests of evicted households, upholding social stability, and preventing predatory behavior by those with power. Such an abuse of power by local authorities seriously undermines the rule of law and shows flagrant contempt for central authority.

To prevent “creating a serious disturbance” from becoming a “pocket crime,” we must strictly define key legal criteria like “serious disorder in a public place.” The crime should only be constituted in cases where expression has truly caused serious disruption to the order of an actual public place. And in order to constitute “serious disorder,” the speech in question must cause harm that is clear and imminent. If “serious disorder” is simply determined by the subjective conjecture and imagination of those in charge of the case or based on fear of some unpredictable or uncertain outcome, it naturally cannot be considered “serious.”

A classic example is the case of Yu Shiwen and others from Henan who publicly mourned Zhao Ziyang. Zhao Ziyang was originally from Henan, and there is nothing out of the ordinary for people from Henan to mourn other people from Henan. There was no disorder on the scene, and the mourning took place without any interference. It was only when Yu Shiwen and others put a video of the mourning online that they were detained by Henan police. But there is no evidence to prove that these videos caused any disorder in a public place. When investigators make such accusations, they must provide the national public with a convincing explanation in order to prevent the impression that the machinery of state power is being operated by a few arms in order to control 1.4 billion heads.