CECC: Freedom of Expression -- Defining Terms

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Freedom of Expression

Defining Terms

Protected versus Unprotected Speech

"Freedom" does not mean "free of restrictions." On several occasions the U.S. Supreme Court has noted that there are no "absolute" freedoms: "Conduct remains subject to regulation for the protection of society. The freedom to act must have appropriate definition to preserve the enforcement of that protection."(1 ) Therefore, although the First Amendment to the U.S. Constitution provides that "Congress shall make no law . . . abridging the freedom of speech," the U.S. Supreme Court has recognized that the government may do just that: "[T]he unconditional phrasing of the First Amendment was not intended to protect every utterance."(2)

Some types of speech that the U.S. Supreme Court has ruled are not subject to First Amendment protection include:

Obscenity: "If a state obscenity law is [appropriately] limited, First Amendment values are adequately protected by ultimate independent appellate review of constitutional claims when necessary." Miller v. California, 413 U.S. 15 (1973).
Defamation: "[I]t is recognized that punishment for the abuse of the liberty accorded to the press is essential to the protection of the public, and that the common-law rules that subject the libeler to responsibility for the public offense, as well as for the private injury, are not abolished by the protection extended in our Constitutions." Near v. State Of Minnesota Ex Rel. Olson, 283 U.S. 697 (1931).
Causing panic: "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic." Schenck v. United States, 249 U.S. 47 (1919).
Fighting words: The U.S. Supreme Court held that the First Amendment does not protect "fighting words -- those which by their very utterance inflict injury or tend to incite an immediate breach of the peace." Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). However, in Brandenburg v. Ohio, 395 U.S. 444 (1969), the Supreme Court held that the First Amendment protects speech that encourages others to commit violence, unless the speech is capable of "producing imminent lawless action. Even advocating "illegal action at some indefinite future time" is protected. Hess v. Indiana, 414 U.S. 105 (1973).
Sedition: "We reject any principle of governmental helplessness in the face of preparation for revolution, which principle, carried to its logical conclusion, must lead to anarchy. No one could conceive that it is not within the power of Congress to prohibit acts intended to overthrow the Government by force and violence." Dennis v. United States, 341 U.S. 494 (1951), where one of the "acts" which the Court found the government could prohibit was to knowingly and willfully "advocate and teach the duty and necessity of overthrowing and destroying the Government of the United States by force and violence."

Freedom of expression cases often involve a great deal of analysis to understand why some types of expression are protected, while others are not (for example, why the wearing of armbands with a peace symbol was deemed protected expression under the First Amendment, but the burning of a draft card was not).(3) The Supreme Court continues to this day to clarify what is and is not protected expression.(4) Furthermore, different countries have different standards for what is considered protected speech.

The people of China, however, do not even enjoy two of the most fundamental rights to freedom of expression: the right to criticize their leaders and the right to publish free of prior restraints. Therefore, in the interest of clarity, the term "freedom of expression" as used in the Virtual Academy contemplates first and foremost the right of a person in China to engage in one or more of the following types of expression:

Publish a private newspaper carrying original news stories without having to apply to the government for a license, or pay anything but a small registration fee.
Run a subscription or advertising-supported Website carrying original news stories without having to apply to the government for a license, or pay anything but a small registration fee.
Print and publish a book discussing China's leaders without having to employ a government-licensed publisher.
Publish opinions critical of China's senior leaders and their policies.

Currently the Chinese government considers all of these activities illegal and imprisons people who engage in them.

"Freedom of "Expression"

In China, as in the United States, there is no constitutional right to freedom of "expression." Rather, both countries' constitutions specify that citizens enjoy the rights to freedom of "speech" and freedom of "publication/the press." This website uses the term "freedom of expression" as an umbrella term to encompass both of these rights.

"Freedom of "Speech"

"Freedom of speech" is often used in U.S. jurisprudence to refer to non-verbal "expression" (such as flag burning). However, in the interests of clarity, in the Virtual Academy the term "freedom of speech" refers only to spoken and written expression.

Freedom of "Publication" and Freedom of "the Press"

"Freedom of the press" is a somewhat more complicated concept than "freedom of speech," as evidenced by the fact that the nature of this right continues to remain an open issue even for U.S. courts: "The Court has not yet squarely resolved whether the Press Clause confers upon the 'institutional press' any freedom from government restraint not enjoyed by all others" (National Bank of Boston v. Bellotti, 435 U.S. 765, (1978) (Chief Justice Burger concurring)).

In the Chinese context one is faced, not only with Chinese authorities' confusion as to what distinguishes freedom of the press from freedom of speech, but also the problem of translation. For example, the term used in China's Constitution for "freedom of the 'press'" is "出版自由," and the term "出版" is generally understood to mean "publish" (for example, China's 新聞出版總署 translates its own name as the "General Administration of Press and Publication"). Indeed, in most of China's legal canon "出版" is translated as "publishing." For example, in December 2001 the State Council promulgated the Regulations on the Administration of "出版." Is "出版" as used in these regulations to be understood to mean "publishing", or it is to be understood in light of the term as used in the Constitution to mean "Press"? The regulation itself defines "published/press items" as "such things as newspapers, periodicals, books, audio/visual productions and electronic publications." This would seem to indicate that here "出版" refers to "publishing" in the broader sense. But the regulation also states:

§Article 5 : All levels of the People's Government shall ensure that citizens are able to legally exercise their right to freedom of "出版". When citizens exercise their right to freedom of "出版" they shall abide by the Constitution and laws, shall not oppose the basic principles confirmed in the Constitution, and shall not harm the interests of the country, the society or the collective or the legal freedoms and rights of other citizens.
§Article 24 : Citizens may, in accordance with the prescriptions of these Regulations, in their publications freely express their views and opinions with respect to national affairs, economic and cultural affairs, and social affairs, freely release the results of their undertakings in scientific research, literary art creations and other cultural activities. Legal publications shall receive the protection of the law, and no group or individual may illegally interfere, hinder or disrupt the publication of publications.

The one exception appears to be Article 35 of China's Constitution, where Chinese government translators translate the term "出版" as "press."

So are Articles 5 and 24 of Regulations on the Administration of "出版" simply reaffirming the freedom of "出版" qua "press" provided for in the Constitution? Or does this regulation propose to grant PRC citizens some new right to "出版" qua "publishing"? Or neither? Or both?

While it may be tempting to dismiss this matter as a semantic distinction without a material difference, the Communist Party's Central Compilation & Translation Bureau apparently thought the issue significant when revising their official translations of Marx and Engels:

In 1995 the Central Compilation & Translation Bureau published new translations of the "Collected Works of Marx and Engels." In the old translations the term . . . "die presse freiheit" was translated as "freedom of 出版." While researching the new translations, it was felt that according to a correct understanding of the etymology of the German term "die presse" and a more complete understanding of the complete text of Marx's works, Marx's use of the term "die presse" and its derivations was not really talking about the larger scope of books and publishing, but was rather referring to periodicals and news, and this includes books and book publishing only at a certain level. In order to correctly express Marx's original meaning, in every case in the old translation where the term "chuban" appeared, and in the vast majority of cases where the term ""出版物" [publications] and related words appeared, they were changed, in accordance with the context, to "news publishing," "periodicals," "news publishers," "news publishing enterprises" and so on. In every instance the term "freedom of 出版" [freedom to publish] was changed to "freedom of 新聞出版" [literally, "news publishing"].

"Investigating China's Media Law," Wei Yongzheng, TV Net, December 29, 2001

In light of this confusion, and China's government's translations of China's Constitution notwithstanding, the Virtual Academy uses both the term "freedom of publication" and the term "freedom of the press" to refer to the right to disseminate one's views publicly in writing, and not to a specific right to "be published."

Footnotes

Footnote 1:Cantwell v. Connecticut, 310 U.S. 296 (1940).
Footnote 2:Roth v. United States, 354 U.S. 476 (1957).
Footnote 3: Compare Tinker v. Des Moines School District, 393 U.S. 503 (1969) with United States v. O'Brien, 391 U.S. 367 (1968).
Footnote 4: For a recent example, see Virginia v. Black, Docket Number: 01-1107, Decided: April 7, 2003.

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The page was last modified on February 23, 2006