Not Heroes of Free Speech

China’s Supreme People’s Court (SPC) court regularly releases sets of model cases on hot areas of law that provide guidance to the lower courts and help unify the nation’s judgments. These are often not the SPC’s own cases, but are curated and summarized cases that the Court approves of and feels have explanatory value for lower courts and the public.

This week, the SPC highlighted several cases related to limits on public discourse about “heroes”, illustrating the boundaries for speech that runs up against political canon. In the name of protecting the dignity and honor of national heroes , the cases have the effect of chilling speech that questions the nation’s official historical narrative. Moreover, while the cases demonstrate legal principles, they draw on several murkier concepts in doing so, such as China’s “core socialist values”- a recent and ubiquitous national morality campaign-, the “feelings of the Chinese people”, the “social public interest”, and, of course, “heroes”- which may make it difficult to anticipate future rulings.

The first three of the five cases arose from an article published in a history journal, which challenged several elements in the official narrative of the WWII heroics of 5 communist soldiers, “The 5 Warriors of Langya Mountain”, who are renowned for resisting large numbers of enemy troops before jumping from a cliff to evade capture.

Case Pattern 1: Those who speak negatively of heroes enjoy less protection against defamation.

In the first two cases, the author and historian Hong Zhenkuai, and the article’s editor, sued two prominent people who insulted them on Weibo – China’s twitter parallel-  in response to the article.  They requested a public apology from both defendants and emotional damages of 5,000 yuan ($740) and 10,000 yuan ($1480) respectively, which was denied the courts denied. The courts instead held that those who publish inflammatory content about national heroes should expect, and thus must be more tolerant of, the negative responses that come their way. Further, even if the responses are personal or crude, they are made in defense of heroes’ reputations and predictable.

Case Pattern 2: The heroic spirit is part of the social public interest.

The author of the same article was the defendant in two separate lawsuits filed by children of the “5 Warriors of Langya Mountain,” alleging that the author had damaged their fathers’ reputations and honor. The courts reaffirmed that as close relatives of the deceased heroes, the plaintiffs had standing to sue for damage to their reputations. They then went on to explain that even though the article didn’t contain any directly insulting language, it cast doubt on their honor by questioning the truth of many, even unimportant, details of the story, amounting to tarnishing their reputation.  Mr. Hong was ordered to formally apologize and help eliminate the negative impact.

The SPC commended the lower courts’ recognition that the Langya Mountain story had become part of the Chinese people’s collective memory and part of the national ethos. As such, the injury was not only to the individual reputations of the late heroes, but to the societal public interest as well [over defendant’s objection that it harmed the Communist Party’s interests at worst].  There have long been those who have argued that special protection is needed for the reputation of historical ‘heroes’, because of the special role their reputation plays in supporting the nation spiritually, perhaps even expanding the right to sue beyond surviving family members.

As earlier as 1993, the SPC confirmed that even truthful critical statements could cause actionable reputation injuries, so there is little surprise that the truth of Mr. Hong’s article isn’t addressed in the SPC summaries.  It is interesting to notice, however, that not only does the historical incident’s public interest not provide added protection to those who wish to discuss it; it seems to be the opposite, with the public interest in the topic making it off limits.  The courts’ analysis is described as a balance of rights between freedom of speech, academic speech, personal integrity and honor, and the public interest in preserving the heroes’ reputations; but it seems like this last interest trumps all others.

Case Pattern 3: Commercial disparagement of heroes is worse  

The last case relates to an internet troll and a tasteless attempt at marketing. An online celebrity made a Weibo post mocking Qiu Shaoyun- a Chinese hero of the Korean war said to have slowly burned to death rather than moving to escape the fire and betraying his location and that of his comrades- to half-cooked barbecue.  Almost two years later, in an ad campaign making snarky ‘Thank you’ notes to celebrities, the Jiaduobao ice tea company sent its own Weibo post referencing that notorious tweet, by saying that since the poster’s name was now synonymous with barbecue, they’d donate drinks if he opened a barbecue stand, and some back and forth followed. Qiu’s brother sued for the reputation damage, seeking an apology and emotional damages from both the internet star and the drink company. They were ordered to make an apology and pay nominal emotional damages of 1 yuan ($.14).

The SPC specifically noted the value of this case as a warning against defaming heroes. It also praised the lower court’s consideration of the harm, noting that the context of speech (commercial) mattered, and that the two defendants’ speech was cumulative and should be taken together and that the defendants could be jointly liable.

Conclusion:

These are all civil cases, and nobody was locked up for speech questioning or detracting from the various war heroes. In the not distant past, less prominent attacks on the reputation of heroes have resulted in detention and lawyer Pu Zhiqiang was tried criminally for weibo posts, including , apparently one mocking heroic good Samaritan, Lei Feng.  Still, the main remedy awarded in all of these cases was to stop the harm, removing the article from circulation, limiting both the speakers’ freedom and that of interested potential audiences.

Everybody wants a hero. Yet, what makes a hero greater than the average Joe is that their actions and values can withstand scrutiny. Over-protection of heroes’ larger-than-life images doesn’t strengthen their memory and reputation, but makes them appear more vulnerable. Even if portions of a national mythology are cast into doubt, or proven to be exaggerated, the heroism will still be there, and perhaps be stronger role-models for being recast as relatable people.