So-Called "Punishment Because of Speech" Is a Misreading of the Judgment in the Liu Xiaobo Case

The following is a translation prepared by the Congressional-Executive Commission on China of a Xinhua news article that appeared on the Xinhua Web site on October 25, 2010. The Chinese text was retrieved from the Xinhua Web site on October 25, 2010.

So-Called "Punishment Because of Speech" Is a Misreading of the Judgment in the Liu Xiaobo Case

--A Criminal Law Expert Talks About the Liu Xiaobo Case and Freedom of Speech

Liu Xiaobo was sentenced to 11 years' imprisonment and two years' deprivation of political rights for committing the crime of inciting subversion of state power. A final judgment was handed down in February of this year and the case is gradually fading from public attention. In an unexpected turn of events, however, the Norwegian Nobel Committee has given this year's Nobel Peace Prize to Liu Xiaobo. Subsequently, some foreign media called Liu Xiaobo's sentence "punishment because of speech." Apparently, they believe Liu Xiaobo's words and deeds fall within the scope of a citizen's freedom of speech and that the court should not have found him guilty and sentenced him. Does this characterization make sense? Where is the line between freedom of speech and inciting subversion of state power? With these questions in mind, this reporter interviewed famous criminal law scholar, Professor Gao Mingxuan.

Professor Gao Mingxuan thinks that in order to discuss whether Liu Xiaobo's actions constitute a crime, one must first be clear about what Liu Xiaobo did. Based on the facts as determined by the Beijing No. 1 People's Intermediate Court and the Beijing High People's Court, Liu Xiaobo's actions consisted of two components. First, from October 2005 to August 2007, Liu Xiaobo wrote numerous essays including "The Chinese Communist Party's Dictatorial Patriotism," "Changing the Regime by Changing Society," and "The Negative Effects of the Rise of Dictatorship on World Democratization," which he published on Internet Web sites such as "Observation" and "BBC Chinese Language Net," and which repeatedly incited the overthrow of China's current political power. Second, from September to December 2008, Liu Xiaobo colluded with others to write an essay titled "Charter 08," which advocates a number of inciting propositions, including "abolishing the special privilege of one party to monopolize power" and "establishing a Chinese federal republic." Further, in collusion with others, after collecting more than 300 signatures, he distributed "Charter 08" and the signatures to foreign Web sites, which were published on "Democratic China," "Independent Chinese PEN Center," and other Web sites. In court Liu Xiaobo admitted to the fact of these two acts of writing and publishing essays. However, Liu Xiaobo defended himself by saying he was not inciting subversion of state power, but merely expressing criticism.

What needs to be discussed is whether, in the end, the content of the essays written and published by Liu Xiaobo is simply ordinary "speech of a critical nature," or whether it possesses the criminal qualities of subverting state power. Professor Gao Mingxuan believes that from the literal meaning of Liu Xiaobo's words, one can directly perceive a motive and purpose to overthrow our nation's state power and existing social system. For example, Liu Xiaobo says "the Chinese Communist Party's dictatorship brings calamity to the country and the people," and demands "changing the regime," and "establishing a Chinese federal republic," etc., which clearly transmitted information inciting the masses to rise up and overthrow the political power and socialist system of our nation's existing lawful people's democratic dictatorship led by the Chinese Communist Party. In another example, Liu Xiaobo said "for the emergence of a free China, rather than placing hope in the ruling party's "revamped government administration," it is far better to place hope in the ever-expanding "new power" of the people. This also fully reveals his goal of inciting this so-called "new power" to overthrow the political power. This speech no longer belongs in the category of ordinary critical speech and should be considered activity that poses a real threat to society.

At this point, this reporter had another uncertainty to clear up: Does every utterance of inciting speech unfavorable to the stability of the current political power need to be dealt with through the criminal law? If so, will this impact the people's right to exercise freedom of speech? Professor Gao Mingxuan believes that every nation's criminal laws emphasize the principle of caution in the application of criminal punishment, and that there are conditions on the use of criminal legal measures to combat and stop speech which incites endangering national security. [China's] criminal law is no exception. Looking at the provisions of Article 105, Paragraph 2 of our nation's Criminal Law and its practical judicial application, an act must meet two basic requirements for it to constitute the crime of inciting subversion of state power. First, the act must be carried out by spreading rumors or slanders or other means. Liu Xiaobo's actions were exactly an extreme display of spreading rumors, slander, smears, and other means. For example, in "Charter 08" Liu Xiaobo states: "The 'new China' established in 1949 was nominally referred to as 'the people's republic' but in essence it was 'the Party is all-powerful.'" He also states: "Of all the major nations in the world today, only China has a political environment still marked by authoritarianism, and this has resulted in continuous human rights disasters and social crises." This clearly is spreading rumors, slanders, or smears. Second, the act must pose a serious threat to society. Judicial practice tells us that not all acts of spreading rumors or slander to incite subversion of state power must be subject to criminal punishment. The standard for determining a crime depends on whether or not a certain inciting act poses a serious threat to society. This standard serves as the substantive boundary between ordinary speech of an inciting nature and the crime of inciting subversion of state power. Correctly grasping this "substantive boundary" also resolves the boundary between free speech and inciting subversion of state power. With regard to the Liu Xiaobo case, the following factors merit attention. First, Liu Xiaobo used the Internet's features of rapid transmission of information, broad reach, great social influence, and high degree of public attention, and over a long time systematically published a series of essays on the Internet. In an undisguised way, he carried out slander and smears against our nation's current political power. This intent to overthrow the current political power is obvious. In addition, Liu Xiaobo organized or lured others to participate by providing their signatures, causing this inciting speech to be widely linked, reposted, and browsed. Foreign, anti-China forces used Liu's words and deeds to launch attacks against China, leading in fact to serious harmful effects and consequences. Moreover, Liu Xiaobo has been engaged in activities to incite and overthrow for a long time. In January 1991, Liu was exempted from criminal punishment for the crime of inciting counterrevolutionary propaganda (at the time, Liu Xiaobo's tearful admission of guilt and submission to the law was met with the court's leniency). In September 1996, again because of disturbing social order [Liu Xiaobo] was sentenced to three years of reeducation through labor. These three factors reflect the serious threat Liu Xiaobo's actions pose to society, and indicate the extremely large danger it poses to other people (and the high possibility that he will commit these crimes again), making the need to use criminal punishment unavoidable. At the same time, Liu Xiaobo's writing and publishing of inciting essays on the Internet, as well as collecting others' signatures, is no longer an issue of speech, but rather the carrying out of an "act" prohibited by the criminal law. Clearly, when the Western media uses the phrase "punishment because of speech," they do not understand Liu Xiaobo's judgment and instead are making what they think is the "obvious" criticism.  

Professor Gao Mingxuan also explained to the reporter that the laws of nearly every nation in the world and relevant international conventions contain provisions that treat speech as a form of expression constituting a criminal act. "Freedom of speech" in any nation has its limits. For example, the United States Code, Chapter 115, Sections 2383 and 2385 provide that whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or its laws thereof; knowingly or willingly advocates, incites, advises, teaches the duty, necessity, desirability, or propriety of using force or violence rioting, or assassination of government officials to overthrow or destroy the United States government or the government of any State, Territory, District, or Possession thereof, or the government agency or government of any political subdivision therein, shall be sentenced to punishment. The United Kingdom's "Treason Act 1351" provides that conspiring to eliminate the Queen or publishing with the intent to incite the aforementioned act are considered illegal. Article 90(b) of Germany's Criminal Law provides for the crime of directing at constitutional organs slander hostile to the constitution. Article 342 of Italy's Criminal Law provides for the crime of insulting political, administrative, or judicial organs. Article 61 of Canada's "Criminal Code" provides that issuing inciting speech and writings and participating in inciting activities constitutes a crime. Australian law provides that advocating or inciting the overthrow of the federal constitution or government is a crime. Article 505 of Singapore's Criminal Law provides that incitement of action against the government or incitement that threatens public stability and order constitute a crime, and so on. In yet another example, Article 20 of the International Covenant on Civil and Political Rights provides that advocacy of national, racial, or religious hatred should be prohibited by law. Article 13 of the American Convention on Human Rights provides that freedom of thought and expression cannot threaten such boundaries as national security, public order, or public health or morals. Article 5 of the European Convention on the Suppression of Terrorism provides that contracting parties shall take the necessary measures to make criminal acts of illegal and intentional public incitement to commit terrorism a crime under that nation's laws and subject to punishment.

Professor Gao Mingxuan also explained that there are cases in which Western countries have punished incitement as a crime. In the last century the United States heard the case of Schenck mailing leaflets opposing the military draft and inciting soldiers to resist active duty; Abrams printing and posting leaflets opposing U.S. troop deployments and calling on munitions workers to strike; and Leon Mack inciting opposition to the police, etc. In the United States speech that threatens another person or goes so far as to threaten the nation's political leaders also will be considered a crime. According to the British newspaper "The Independent," a 28-year-old male in the United States published a poem titled "Sniper" on the Internet, describing a scene in which a "tyrant" is shot to death, insinuating the assassination of an American president. Even though the poem did not specifically mention President Obama, it still was considered a crime. A district court in Kentucky will announce its verdict in the case on November 2. The defendant faces up to five years in prison and a fine of US$165,000 for writing a poem threatening the president's personal safety. Clearly, America's freedom of speech similarly presupposes the protection of the existing system and social stability. There are similar cases in other countries. In 2005, for example, Canada's federal court ruled that a German citizen named Zundel had exceeded the scope of freedom of speech in advocating for the destruction of the government and pluralistic society, and that he threatened national security. He was deported. In 2001, a German music group called Landser was suspected of disseminating music containing racist content on the Internet, and was sentenced. In 2007, a German court ruled that Zundel had advocated racial hatred and denied the Nazi Holocaust and imposed a sentence. In 2003, France found a Web site administrator guilty for creating a Web page that incited racial hatred. In 2007, the Frenchman Gollnisch was sentenced for questioning the cause of death and the number of those who perished during the Nazi Holocaust. In 2004, Denmark convicted a male citizen for expressing racial hatred toward Jews through the Internet.  In 2006, British historian David Owen was convicted by an Austrian court for his denial of the Nazi Holocaust. There are also related precedents in international judicial organs. For example, the United Nations International Criminal Tribunal for Rwanda convicted Belgian journalist George Ruggiu and others for using a Rwandan radio station to incite racial hatred and violence.

Furthermore, differences in cultural background, social and living conditions, and legal systems mean that every nation has its own standard during the course of a trial for determining what speech constitutes a crime. Anglo-American countries commonly use "The Clear and Present Danger Test" as their criminal conviction standard. This standard was established by U.S. Supreme Court Justice Holmes in his opinion in the Schenck case, which involved mailings opposing the draft (Schenck v. United States). "The character of every act depends upon the circumstances in which it was done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." Interestingly, taking the U.S. Supreme Court justice's citation of the example of "falsely shouting fire in a theater," if it does not cause injury or any kind of serious disturbance, in the United States this would be a criminal offense, while in the minds of the Chinese public at most this would be a public order case.

Finally, Professor Gao Mingxuan believes that the specific standard upon which American courts have determined it can restrict freedom of speech, contains enlightening significance for us: first, freedom of speech is a right that may be restricted based on an evaluation of the harm that may result; second, the standard for determining whether or not the right to freedom of speech may be restricted is based on the nature and level of the danger that the speech poses to the actual order within a certain environment. Accordingly, when faced with inciting speech that is concrete and extremely likely to cause social chaos, nations must impose restrictions. Even if we use the American standard to judge the case of Liu Xiaobo, the decisions of the Beijing courts at the two levels are not in doubt.


2010年10月25日 14:26:13  来源: 新华网

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刘晓波因犯煽动颠覆国家政权罪,被判处有期徒刑十一年,剥夺政治权利二年。此案已于今年2月终审,正在逐渐淡出公众的视线。然而出乎意料的是,挪威 诺贝尔委员会将今年诺贝尔和平奖授予刘晓波。接着,有境外媒体称刘晓波被判刑是“因言获罪”,似乎认为刘晓波的言行属于公民言论自由的范围,法院不应对他 定罪判刑。这种说法有道理吗?煽动颠覆国家政权与言论自由的界限在哪里呢?带着这些疑问,记者走访了著名刑法学家高铭暄教授。

高铭暄教授认为,要讨论刘晓波的行为是否构成犯罪,应该先搞清楚刘晓波实施了哪些行为。从北京市第一中级人民法院和北京市高级人民法院一致认定的事 实看,刘晓波的行为有两项:其一,2005年10月至2007年8月,刘晓波撰写并在互联网“观察”、“BBC中文网”等网站发表《中共的独裁爱国主 义》、《通过改变社会来改变政权》、《独裁崛起对世界民主化的负面效应》等多篇文章,多次煽动推翻中国的现政权;其二,2008年9月至12月,刘晓波伙 同他人撰写了题为《零八宪章》的文章,提出“取消一党垄断执政特权”、“建立中华联邦共和国”等多项煽动性主张,并伙同他人在征集了三百余人的签名后,将 《零八宪章》及签名发给境外网站,在“民主中国”、“独立中文笔会”等网站上发表。这两项行为都是撰写和发表文章的事实,刘晓波本人在法庭上是承认的。只 不过,刘晓波辩解说没有煽动颠覆国家政权,而只是发表了一些批评性的言论。

需要讨论的是,刘晓波撰写和发表文章的内容,究竟是一般的“批评性言论”,还是具备颠覆国家政权的犯罪性质?高铭暄教授认为,从刘晓波言论的字面含 义,即可直观地判断其具有推翻我国国家政权和现行社会制度的动机和目的。例如,刘晓波说“中共独裁政权祸国殃民”,要求“改变政权”、“建立中华联邦共和 国”等等,明明白白传递了煽动民众起来推翻中国共产党领导的我国现行合法的人民民主专政的政权和社会主义制度的信息。又如,刘晓波说:“自由中国的出现, 与其寄希望于统治者的‘新政’,远不如寄希望于民间‘新力量’的不断扩张”。这也充分地暴露了他煽动所谓的“新力量”来推翻政权的目的。这些言论,已经脱 离了一般的批评性言论的范畴,属于具有现实社会危害性的行为。

说到这里,记者还有一个疑问没有解开:凡是发表不利于现政权稳定的煽动性言论的,都需要刑法加以调整吗?如果这样的话,会不会影响公民行使言论自由 的权利呢?高铭暄教授认为,任何国家刑法都讲究刑罚适用的审慎原则,动用刑法手段打击和制止煽动危害国家安全的言论是有条件的。我国刑法也不例外。从我国 刑法第一百零五条第二款的规定和司法实践情况看,构成煽动颠覆国家政权罪的行为,须具有两个基本条件:第一,该行为必须是以造谣、诽谤或者以其他方式实施 的。刘晓波的行为正是造谣、诽谤、污蔑等方式的极端表现形式。例如,刘晓波在《零八宪章》中说:“1949年建立的‘新中国’,名义上是‘人民共和国’, 实质上是‘党天下’。”还说:“在当今世界的所有大国中,唯独中国还处在威权主义的政治生态中,并由此造成连绵不断的人权灾难和社会危机。”这些显然属于 造谣、诽谤、污蔑。第二,该行为必须具有严重的社会危害性。审判实践告诉我们,并非所有的以造谣、诽谤为手段的煽动颠覆国家政权的行为都需要动用刑罚手 段,其中区分罪与非罪的标准是看某种煽动行为有无严重的社会危害性。这一标准就是煽动颠覆国家政权罪与一般的煽动性言论之间的实质界限。正确把握这个“实 质界限”,也就解决了煽动颠覆国家政权与言论自由的界限。就刘晓波案而言,以下几个因素值得注意:首先,刘晓波利用互联网传递信息快、传播范围广、社会影 响大、公众关注度高的特点,长时间、系统性地在互联网上发表的一连串文章,赤裸裸地对我国现政权进行诽谤、污蔑,其推翻现政权的故意是显而易见的。其次, 刘晓波组织或者诱劝他人参加签名,致使其煽动言论被广泛连接、转载、浏览,境外反华势力利用刘的言行向我国发难,事实上造成了严重的不良影响和后果。再 次,刘晓波长期从事煽动颠覆活动,1991年1月因犯反革命宣传煽动罪被免予刑事处分(当时刘晓波痛哭流涕表示认罪服法获得法院宽大处理);1996年9 月又因扰乱社会秩序被决定劳动教养3年。这三个因素,反映了刘晓波的行为具有严重的社会危害性,且表明其人身危险性(即再次犯罪的可能性)极大,到了不动 用刑罚手段不可的地步。同时,刘晓波撰写并在互联网上发表煽动性文章,并且征集他人签名,已经不是言论问题了,而是实施了刑法禁止的“行为”。可见,西方 媒体所谓“因言获罪”之说,是不了解刘晓波的判决而作出的想“当然”评论。

高铭暄教授还向记者介绍,以言辞为表现形式的犯罪行为,几乎在世界各个国家的法律和有关国际公约中均有规定。“言论自由”在任何国家都是有限度的。 比如,《美国法典》第115章第2383条、2385条规定,对煽动、实施、协助或进行叛乱或造反以反对美国当局或其法律的行为;蓄意或故意鼓吹、煽动、 劝说或讲授理应、必须、值得或宜于以武力或暴乱或通过暗杀政府官员的方式,推翻或摧毁美国政府或任何州、领地、特区或占领地政府,或任何下级政治机构或政 府的行为,判处刑罚。英国《1351年叛国法令》规定图谋废除女皇或发表煽动上述意图行为违法。德国刑法第90条b规定了针对宪法机构实施敌对宪法的诋毁 犯罪。意大利刑法第342条规定了侮辱政治、行政或者司法机构犯罪。加拿大《刑事犯罪法典》第61条规定,发表煽动性语言文字、参与煽动性的活动构成犯 罪。澳大利亚法律规定鼓吹、煽动推翻联邦宪法或政府的行为违法。新加坡刑法第505条规定了煽动实施反政府或者反公共安定秩序的犯罪等。又如,《公民权利 和政治权利国际公约》第20条规定,鼓吹民族、种族或宗教仇恨的,应以法律加以禁止。《美洲人权公约》第13条规定,思想和表达自由不能突破保护国家安 全、公共秩序、公共卫生或者道德等界限。《欧洲理事会反对恐怖主义公约》第5条规定,各缔约方应采取必要措施,将非法和故意公开挑动实施恐怖主义犯罪的行 为作为国内法下的犯罪加以惩治。

高铭暄教授还介绍,在西方国家以煽动治罪的案件时有发生。美国在上个世纪就先后审理了申克邮寄反征兵传单,煽动军人反抗服役案;艾布拉姆斯印制、张 贴反对美国出兵的传单,呼吁军火业工人进行总罢工案;Leon Mack煽动反对警察案等。在美国发表威胁他人乃至国家领导人的言论也会涉嫌犯罪。据英国《独立报》报道,美国一名28岁的男子在一个网站上发表了一首题 为《狙击手》的诗,描述射杀了一名“暴君”的情景,影射刺杀美国总统。尽管诗中没有提及奥巴马总统,却被控构成犯罪。该案将于11月2日在肯塔基州地方法 院宣判,被告人因写诗威胁美国总统人身安全而面临最高五年的监禁,同时可能被处罚款16.5万美元。可见,美国的言论自由同样是以维护其现存制度和社会稳 定为前提的。其他国家也有类似案例。比如,2005年,加拿大联邦法院认定德国人Zundel鼓吹破坏政府和多元社会,已经超出言论自由的范围,威胁了国 家安全,将其驱逐出境。2001年,德国一个名叫Landser的乐队因涉嫌在网上散布含有种族主义内容的音乐而被判刑;2007年,德国法院认定 Zundel煽动种族仇恨和否认纳粹屠杀,对其判刑。2003年,法国判决一名制作煽动种族仇恨网页的网站站长有罪;2007年,法国戈尔尼施因发表质疑 纳粹大屠杀死难人员死亡原因及人数的言论被判刑。2004年,丹麦判决在网上发布针对犹太人种族仇恨言论的一名男子有罪。2006年,英国历史学者戴维• 欧文因否认纳粹大屠杀,被奥地利法院判刑。国际司法机构也有相关案例。比如,联合国卢旺达国际刑事法庭判处通过卢旺达电台煽动种族仇恨和暴力的比利时记者 乔治•鲁久因等人有罪。

此外,由于文化背景、社会生活条件和法律体系的区别,各国在对言辞行为认定犯罪的审判实践中把握着不同的标准。英美国家通常以“明显且现实的危险原 则(THE CLEAR AND PRESENT DANGER TEST)”作为定罪标准。这一原则是依据美国霍姆斯大法官在申克寄发反征兵邮件案(SCHENCK v. UNITED STATES)中的意见而确立的。“一切行为的性质应由行为时的环境来确定。对言论自由所作最严格的保护,也不会容忍一个人在戏院中妄呼起火,引起恐慌。 禁令所禁止的一切可造成暴力后果的言论也不受保护。一切有关言论的案件,其问题在于所发表的言论在当时所处的环境及其性质下,是否能造成明显而现实的危 险,产生实际祸害。如果有这种危险,国会就有权阻止。”很有意思的是,美国大法官举出的“在剧院中妄呼起火”的案例,如果没有造成人员伤亡或者其他严重扰 乱社会秩序后果的话,在中国公众的心目中,充其量只是个治安案件,但在美国却属于刑事犯罪。

最后,高铭暄教授认为,美国法院就限制言论自由问题提出的具体认定标准,对于我们来说是有启发意义的:一是言论自由是一种可以根据危害结果来衡量的 可以限制的权利;二是言论自由的限制与否之标准,是根据在一定环境下的言论给现实秩序造成的危险的性质和程度来确定的。据此,对具体的、极易引起社会动乱 的煽动言论,国家必须加以限制。即便用这个美国的标准去衡量刘晓波案,北京市两级法院的判决也不存在可质疑之处。