Prior Restraints

Prior restraints are synonymous with censorship, and represent one of the most onerous infringements on freedom of expression. The term "prior restraint" refers to any system in which the government may deny a person the use of a forum for expression in advance of the actual expression. Chinese authorities employ several different types of prior restraints over the citizens of China in order to ensure that the Communist Party is able to silence critics and maintain direct editorial control over political information and news reporting:

• Legislative Prior Restraints: People in China must ask the government's permission before they are allowed to publish. Chinese authorities have imposed administrative barriers that make it difficult, dangerous, or impossible for citizens to exercise their right to freedom of expression.
• Political Prior Restraints: The Communist Party has the right and the ability to screen works prior to publication, and stop publication of those works it finds objectionable.
• Psychological Prior Restraints: Chinese authorities intimidate the majority of China's citizens into silence by using vague and overbroad laws to imprison people who publish politically sensitive works without permission.
• Technological Prior Restraints: Chinese authorities use computer software and hardware to prevent Chinese citizens from viewing and publishing opinions that the government disapproves of.

China's Communist Party was extremely critical of prior restraints on publishing when they were the targets of this type of censorship. Since coming to power, however, Chinese authorities have elected to impose extensive prior restraints on the publishing of newspapers, magazines, books, and websites. Only people with the correct political, ideological, intellectual and, increasingly, financial, credentials are allowed to engage in publishing. This allows authorities to effectively silence critics and control the flow of information to and among the people of China.

Legislative Prior Restraints in China

One of the most efficient and effective forms of prior restraint, and the form preferred by Chinese authorities, is the licensing scheme, whereby the government requires individuals to obtain a license, permit, or other authorization in order to legally engage in publishing. The Chinese government has thus transformed a constitutional right into privilege for those the government deems qualified to hold it.

Historically, licensing schemes have been deemed the most severe form of infringement on freedom of expression because the requirement of obtaining and maintaining authorization creates barriers to entry, and means that government authorities control who gets to speak (by refusing to grant authorization) and keep their fingers on an "on-off switch" with respect to an entire publication (by maintaining the ability to revoke authorization and silence the speaker completely).

While licensing schemes are a particularly onerous infringement on freedom of expression, most nations (including the United States) have determined they are necessary for broadcast media. This is because the medium employed by broadcasters, the radio spectrum, is a finite natural resource, and two broadcasters attempting to use the same portion of the spectrum will interfere with each other's signal. A good example of this is the way the Chinese government jams broadcasts of Voice of America and Radio Free Asia into China. Similarly, most governments have determined that a failure to regulate access to the radio spectrum would result in no one being able to use it effectively.

Because licensing schemes are such onerous infringements on freedom of expression, and because the justifications underlying the regulation of the radio spectrum do not exist with respect to things like paper, ink, and websites, licensing schemes are practically unheard of in representative democracies with respect to print media and the Internet.

China's publishing regulations state that the government directly controls the amount, structure, distribution, and coordination of all publishing in the country. In China no one may publish their opinions in China without first receiving permission from the government. Specifically, under Chinese law a person may not legally engage in any of the following activities unless the government determines they are properly qualified and grants them authorization:

• engage in news publishing;
• publish a newspaper, periodical, book, or any other publication;
• engage in the publication, production, copying, importing, wholesale, retail, or renting of audio-visual products;
• operate a facility to print or copy publications;
• import publications without authorization;
• exhibit imported publications without authorization; and
• publish, produce, import, or distribute magnetic, optical, or electronic media containing drawings, writing, sound, or pictures without authorization.

In addition to requiring Chinese citizens to obtain government permission prior to exercising their constitutional right to freedom of expression, Chinese authorities also severely restrict reporting on political and social topics:

• Websites may only publish news acquired from government-authorized sources;
• The more important a political or social topic is, the more strict the requirement that government permission must be obtained prior to publication;
• Discussion of some topics, such as the lives of China's leaders, is completely off limits to all but a select group of publishers.

Finally, Chinese authorities ensure their ability to control all publishing in China by:

• Prohibiting foreign individuals and entities from engaging in publishing; and
• Requiring all Chinese publishers have a "government sponsor" and a "government manager."

The following table provides just a few examples of these regulations:

Political Prior Restraints in China

The Communist Party's Central Propaganda Department sends out regular bulletins to editors informing them which topics are forbidden. For example, in July 2003, Xinhua reported that Shenzhen's Administration for Press and Publication had issued "Measures for Publishing Orientation Warning Work" specifying how authorities may require editors and managers of publications exhibiting inappropriate political orientation to undergo "critical education" and possibly reassignment. More recently, in August 2003 reports emerged that Chinese authorities had issued a list of "three topics that cannot be mentioned" to media outlets and academic institutions prohibiting the publication of articles on, or academic discussion of, constitutional amendments, political reform, and the Tiananmen Square crackdown.

China's prior restraint system not only allows authorities to exercise these "negative" controls over the media by prohibiting people from publishing and forbidding the publication of objectionable articles, but it also enables the government to suppress freedom of expression through "positive" controls, by dictating to editors what they must print. The government exercises these positive controls by requiring senior editorial staff to receive political indoctrination, and by convening regular meetings with editors and issuing bulletins to inform them of what stories they must carry and how certain issues must be portrayed. In the weeks before the 16th Party Congress in 2002, the government demonstrated that it is both willing and able to force publications to print what it demands when it required popular Internet portals such as Sohu.com to display banners praising the Party and celebrating the Party Congress in lieu of paid advertising.

Media outlets that fail to obey mandates like the aforementioned examples are subject to closure, and their editors, managers, and reporters to dismissal.

Psychological Prior Restraints in China: Self-Censorship

Chinese authorities are able to chill freedom of expression on politically sensitive topics not only by erecting barriers to participation by non-government-controlled institutions, but also by encouraging individual self-censorship. China's laws restricting freedom of expression do not clearly define, and therefore do not adequately protect, the scope of that freedom. Broad, vague, and conflicting legislation hangs over Chinese citizens like a fog, obscuring the boundaries of free speech to such a degree that most people are too wary to approach them for fear of over stepping them. The pervasive threat of arrest is generally sufficient to cause people to censor themselves.

A statement by Jiang Zemin during a speech entitled "Regarding Several Problems with the Party's News Work" provides an example of how the Chinese government obscures the boundaries of freedom of expression:

It is in order to protect the basic interests of the people that illegal press activities that are designed to change the socialist system shall not only not be given freedom, but shall also be struck down in accordance with the law.

What it means to "change the socialist system" is not made clear, so the people of China are left to infer from Jiang Zemin's statement what they will. They will only know they have made the wrong inference once they have been arrested, because this sort of rhetorical obfuscation is not limited to political speeches, it is also found throughout China's legal code. Two of the most problematic examples of this "fog of law" are the laws and regulations relating to state secrets and national security.

Even more than the ideological rhetoric of its leaders, it is China's legal system that inculcates a sense of fear and promotes self-censorship. China's publishing regulations specify that everything published in the country must "adhere to the guidance of Marxism, Leninism, Mao Zedong Thought and Deng Xiaoping Theory." Furthermore, over a dozen other regulations hold out the threat of sanctions for anyone who commits such vaguely defined breaches as "spreading rumors" or "harming the honor or the interests" of China.

With all of these vaguely defined threats Chinese authorities have created an atmosphere where most citizens are afraid to publish politically sensitive works. Furthermore, China's licensing system for publishers ensures that those willing to publish such works are unable to find willing publishers. For example, in September 2003 the publisher of the Chinese edition of former US First Lady Hillary Clinton's memoirs censored several politically sensitive passages in the book. One of these was a reference to Chinese dissident Harry Wu, a human rights activist who spent 19 years in Chinese work camps before being allowed to go to the US. Wu returned to China in 1995, and was arrested by Chinese authorities. In the Chinese translation, Wu is not named and simply described as "a person wanted for espionage and detained awaiting trial."

Thus, Chinese authorities achieved their goal of silencing discussion of the Harry Wu case, not by directly censoring Hillary Clinton, but rather by intimidating the publisher of her book into censoring it for them. It is irrelevant whether this was done directly through instructions from the Central Propaganda Department, or indirectly through the publisher pro-actively censoring the passage knowing it would lose its state-granted license to publish if it failed to do so. Either way the government achieved its goal: silencing public discourse on a politically sensitive topic.

National Security and State Secrets

The fear of losing ones livelihood by having one's privilege to publish revoked has a sufficiently chilling effect on freedom of expression to ensure commercial publishers will not publish politically sensitive works. Individuals who would try to publish such works privately are generally kept silent out of fear of over stepping China's vague and selectively enforced laws on national security and state secrets.

National Security

In addition to having to worry about violating state secret laws, anyone in China who wishes to communicate with foreigners or to publish information regarding China's politics, society or economy, confronts the threat of subversion charges. Particularly stifling are the provisions of Article 105 of the Criminal Law, under which the use of defamation or rumor mongering to incite subversion of the national regime or the overthrow of the socialist system is a crime punishable by up to five years of imprisonment, criminal detention, supervision or deprivation or political rights. The problem is that exactly what constitutes "rumor mongering" is not defined in statue, case law, or Supreme People's Court notices. Furthermore, China's defamation law is still in the early stages of development, and provides very limited protection for those reporting on political figures. The public security authorities and the procuratorate have not provided any public guidance as to when they will or will not pursue criminal complaints in connection with these matters, and China's courts conduct these trials in secret and do not issue instructive opinions.

For example in mid-February, 2003 a court in Xinjiang Province sentenced Tao Haidong to seven year's imprisonment and three year's deprivation of political rights for subverting the national regime. His crime was using the Internet to publicize "reactionary" essays that "willfully smeared and vilified the leaders of the party and the nation." There is no way of knowing what Mr. Tao said that was such a threat to the national security of China, because Chinese authorities have failed to make public any information indicating that Mr. Tao (or, for that matter, most of the other people currently detained or imprisoned for their writings) did anything more than express opinions or provide a forum for others to express their opinions. Government authorities have not shown the public that these people have committed any acts, or advocated the commission of any acts, that violated any law or otherwise represented a threat to the national security of China. Rather, the only "crime" that has been shown to have occurred was the unauthorized publication of articles that expressed opinions inconsistent with, or critical of, the leaders and policies of the Communist Party and the central government.

State Secrets

Article 53 of China's Constitution states that all Chinese citizens have an obligation to safeguard state secrets, and China's Criminal Law makes it a criminal offense for anyone to disclose state secrets, even negligently. Under China's Regulations on the Protection of Secrets in News Publishing anyone providing information to a news agency in China must first receive government approval if it is unclear whether the information relates to state secrets, and anyone providing information to a foreign news agency must first receive government approval if the information relates to China's government, economy, diplomacy, technology, or military. With respect to Internet publishers, the Provisions on the Administration of the Protection of Secrets on Internationally Networked Computer Information Systems is explicit about who is responsible for keeping state secrets, stating: "those who go online shall bear responsibility." China's Measures for the Implementation of the Law on the Protection of State Secrets provides a list of what may be deemed a state secret, but the list is so broad and vague as to encompass essentially any matters of public concern.

Besides the difficulty in determining exactly what the law means by "state secrets," those wishing to report on current events in China must also deal with the broad definition of what constitutes "intelligence," the disclosure of which is a criminal act. The Supreme People's Court has defined "intelligence" as: "items which involve the security and interests of the nation, but which are not public or which, according to relevant regulations, should not be made public." Thus, before any person in China speaks to the press or a foreigner, they have to feel confident that the information would not involve the security and interests of China or, if it might, they must determine whether it is already public and, if so, whether there are any regulations under which it should not have been made public - an impossible task given the broad definition of what may constitute a state secret.

It is inevitable that, as people in China read about these cases, they will be left wondering: What did these people say that was such a threat to the national security of China? What degree of criticism of a government official constitutes defamation? When does defamation constitute subversion? Is it subversive to communicate with any foreign organization that criticizes or embarrasses the government? China's law does not provide sufficient guidance with respect to these questions.

No Protection from Illegal Search and Seizure

Perhaps one of the greatest concerns regarding freedom of expression on the Internet has nothing to do with the rights granted under Article 35 of the China's Constitution, but rather with what in the U.S. are termed "Fourth Amendment rights." In the United States the Fourth Amendment establishes the right of people to be secure against unreasonable searches and seizures as well as the requirement that warrants cannot be issued without probable cause.

Although on paper Chinese citizens enjoy some protections, in reality these protections provide no meaningful deterrence to Chinese authorities from conducting illegal searches, because China's courts do not enforce them when violation leads to evidence that provides the basis for a criminal conviction. In other jurisdictions, if evidence is acquired in violation of the law either it will be inadmissible, or those who illegally collected it will be subject to punishment. There is no such negative reinforcement in the Chinese criminal investigations, and consequently any data transmitted through the Internet is essentially fair game for government monitors and prosecutors.

Technological Prior Restraints in China: Blocking, Filtering, and Monitoring

Chinese authorities make extensive use of technology to prevent Chinese citizens from communicating their opinions to one another and from receiving opinions from sources that Chinese authorities cannot control or intimidate:

• Chinese authorities attempt to block Voice of America and Radio Free Asia shortwave radio transmissions directed into China.
• The Chinese government restricts who can legally receive satellite television broadcasts and restricts individual ownership of satellite receivers.
• Chinese authorities continue to block human rights, educational, political, and news Web sites without providing the public notice, explanation, or opportunity for appeal.
• Searching for certain sensitive terms, such as "Falun Gong," on search engines regulated by the Chinese government yields results (which do not deviate from the official government position), while searches for the same terms on search engines not regulated by the Chinese government, such as Google, results in the Internet browser being temporarily disabled.
• Attempting to send e-mails from China to well-known dissidents using an Internet browser interface results in the browser being temporarily disabled.
• Chinese law requires all Internet forums (also known as electronic bulletin board systems, or "BBSs") to be licensed, all articles to be constantly monitored, and all ideologically inappropriate articles to be taken down.
• "Internet police" monitor domestic BBSs, and BBS providers must keep a record of all content posted on their Web site, the time it was posted, and the source's IP address or city name.
• BBSs use software to automatically block posts containing blacklisted words and also use human monitors to block and remove articles posted with content that they deem politically unacceptable.

As an example of how this policy silences political discourse among Chinese people, the Chinese government uses its national computer network firewall to prevent Chinese citizens who post information on some websites based in Hong Kong from communicating their message to their fellow citizens in other parts of China.

The ultimate goal of Chinese authorities is to develop technologies that will allow them to screen all information carried over the Internet, block political speech it finds objectionable, and determine both the source and the requester.