Courts Hold Referring to Historical Nihilists as "Sons of Bitches" is Not Defamatory

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In its November 2013 edition the journal Yanhuang Chunqiu (炎黄春秋) published an article entitled “Inconsistent Details in the 'Five Heroes of Wolf Tooth Mountain” (狼牙山五壮士”的细节分歧). The article was authored by Hong Zhenkuai (洪振快) and edited by Huang Zhong (黄钟). Some excerpts:

Article as it appeared on
Yanhuang Chunqiu Website

The story of the "Five Heroes of Wolf Tooth Mountain" is a famous one, and because it has been included in grade school literature textbooks for decades, on could say that it is known to all. The official version of the story can seen in this representative account published by Xinhua Beijing on June 16, 2005 and on the following day in the People's Daily:

In August 1941, the invading Japanese army assembled a force of over 70,000 soldiers at the northern front to launch a devastating "major mopping up" of the Beiyue and Pingxi bases in the Puchaji border region. On September 25, about 3,500 Japanese troops lay siege to Wolf Tooth Mountain area in Southwest Yi County, intending to annihilate the Eighth Road Army and the local Party-Government organs. The Seventh Brigade of the First Division of the Puchaji military district received orders to divert to provide a defensive screen for the Party-Government organs, troops, and general public. After completing the mission and while preparing to withdraw, Ma Baoyu and four other soldiers of the Sixth Platoon remained behind to act as a rear guard, providing cover for the entire battalion's shift. They remained steadfast and calm, and through their courage and advantageous use of geography launched a counter-attack, launching several attacks that pushed back the Japanese puppet-soldiers, killing and wounding about 90 people. 

The following day, in order to prevent the Japanese puppet-soldiers from discovering the direction their company had taken, they undertook a fighting retreat, leading the Japanese puppet-soldiers up the blind alley of Qipanluo Summit on Wolf Tooth Mountain. The Japanese puppet-soldiers, mistakenly believing they were closing the pincers on the main force of the Eighth Road Army, launched sudden attack. 

The five heroes did not flinch and fought back valiantly. When they had exhausted their ammunition they fought back with rocks, fighting steadfastly until sundown.
Faced with the inexorable advance of the Japanese puppet-soldiers, they chose to die rather than surrender. They destroyed their rifles and, without looking back, leaped off a cliff dozens of meters above the ground.  

Ma Baoyu, Hu Delin, and Hu Fucai died heroically for their country. Ge Zhenlin and Song Xueyi by dint of sheer luck escaped death when they became entangled in the trees.

This version has been used continuously for decades, but it has also been the constantly called in to question. For example, during the Great Cultural Revolution the Red Guards expressed doubts about how Ge Zhenlin and Song Xueyi escaped injury when jumping off a cliff.

On July 9, 1994, the Changjiang Daily published an article pointing out that at that time, that there were six, not five, people in Sixth Platoon, and that junior soldier was killed while defecting.

On August 11, 1995, the Yangcheng Evening News published another article claiming that the five heroes jumping off the cliff was "three jumped and two slid away," and while Ma Baoyu and two others jumped off the cliff, Ge Zhenlin and Song Xueyi managed to survive by "sliding down the cliff" and thereby getting caught by the trees.
. . . .
Once we dig deeply into the details of the accounts of the "Five Heroes of Wolf Tooth Mountain," we discover that the aforementioned participants did, at different times and different places, provide descriptions that contain many inconsistencies and contradictions.

For the same incident there may exist several contradictory accounts that may not comport with the facts, or there may be one such account that does actually comport with the facts. But it is not possible that all such accounts can simultaneously comport with the facts. Therefore, historians continue their in-depth research and discussion into the truth of the "Five Heroes of Wolf Tooth Mountain."

“狼牙山五壮士”是一个著名故事，因为被编入小学语文课本并沿用数十年，可谓尽人皆知。该故事的官方版本，可以新华社北京2005年6月16日电、次日《人民日报》刊登的文章为代表：

1941年8月，侵华日军华北方面军调集7万余人的兵力，对晋察冀边区所属的北岳、平西根据地进行毁灭性“大扫荡”。9月25日，日伪军约3500余人围攻易县城西南的狼牙山地区，企图歼灭该地区的八路军和地方党政机关。晋察冀军区第1军分区某部第七连奉命掩护党政机关、部队和群众转移。完成任务撤离时，留下第六班马宝玉等5名战士担负后卫阻击，掩护全连转移。他们坚定沉着，利用有利地形，奋勇还击，打退日伪军多次进攻，毙伤90余人。次日，为了不让日伪军发现连队转移方向，他们边打边撤，将日伪军引向狼牙山棋盘陀峰顶绝路。日伪军误认咬住了八路军主力，遂发起猛攻。5位战士临危不惧，英勇阻击，子弹打光后，用石块还击，一直坚持战斗到日落。面对步步逼近的日伪军，他们宁死不屈，毁掉枪支，义无反顾，纵身跳下数十丈深的悬崖。马宝玉、胡德林、胡福才壮烈殉国；葛振林、宋学义被山腰树枝挂住，幸免于难。

这个版本已经沿用了几十年，但也不断受到质疑。比如，文革中，红卫兵对葛振林、宋学义跳崖而未遇难表示怀疑。

1994年7月9日，《长江日报》刊登了一篇文章，提出当时六班不是5个人，而是6个人，还有一位副班长，投敌被杀。

1995年8月11日，《羊城晚报》又刊登了一篇文章，称五壮士跳崖是“三跳二溜”，马宝玉等三人跳崖牺牲，葛振林、宋学义是“顺着崖壁溜了下去”，所以被树木挂住，得以生还。
. . . .
当我们深入“狼牙山五壮士”有关叙述的细节时，就发现上述人员在不同时间、不同场合下的陈述存在诸多互相矛盾之处。而对于同一件事，相互矛盾的描述可能都不符合事实，也可能有一个符合事实，但不可能同时都符合事实。因此，对于“狼牙山五壮士”的真相，还有待历史学家的深入研究和探讨。

At around 1:00 in the afternoon on November 23, 2013, a Sina Weibo user using the pseudonym "Baodike" posted the following on their weibo:

Yanhuang Chunqiu: The Five Heroes of Wolf Tooth Mountain Once Harvested the Masses' Radishes 

炎黄春秋：狼牙山五壮士曾拔过群众的萝卜

Bodike’s post excerpted content from the aforementioned article.

The same day, Mei Xinyu (梅新育) reposted Baodike's weibo and added  the following statement on his verified Sina Weibo:

"What is motivating the editors and writers at 'Yanhuang Chunqiu'? Couldn't dig up a turnip to eat during a time of war? Is it too polite to say these kinds of writers and authors are sons of bitches?"

《炎黄春秋》的这些编辑和作者是些什么心肠啊？打仗的时候都不能拔个萝卜吃？说这样的作者和编辑属狗娘养的是不是太客气了？

The same day, Guo Songmin (郭松民) reposted Mei’s post and added the following comment on his verified Sina Weibo:

Oppose historical nihilism, if nothing is done about this gang of sons of bitches its a joke!
反对历史虚无主义，不动这帮狗娘养的就是笑话！

In March 2014, Huang and Hong sued Mei and Guo in separate lawsuits. Huang and Hong lost in the lower courts and appealed. The Mei appeal was heard by the Beijing Second Intermediate People’s Court, and the Guo appeal was heard by the Beijing First Intermediate People’s Court.

• Mei Xinyu Decision: http://wenshu.court.gov.cn/content/content?DocID=1948cf02-52fd-49de-9f34-3f1abac646b7
• Guo Songmin Decision: http://wenshu.court.gov.cn/content/content?DocID=2b8e457c-de61-4c3b-8eb2-422619996231

Both Mei and Guo admitted writing the posts and offered a similar defense. Namely, they claimed that their criticisms were not directed at Huang and Hong personally, but should instead be viewed as legally-protected expressions of a defense against those who would cast doubt on official version of what happened on Wolf Tooth Mountain. The First Intermediate People’s Court summarized Guo’s position as follows:

Guo Songmin read and reposted another user’s weibo about "Yanhuang Chunqiu: The Five Heroes of Wolf Tooth Mountain Once Harvested the Masses' Radishes," he then proceeded to critique those historical nihilists who would attempt to slander and sully martyrs of the Anti-Japanese War, defame the People's heroes, and violate social norms.
Guo Songmin believes there should be no tolerance for blasphemy of revolutionary martyrs,  no tolerance for insults of the People's heroes, and that every citizen has a duty and a responsibility to safeguard public morality and People's righteousness. 

郭松民是在阅读并转发了其他网民关于“炎黄春秋：狼牙山五壮士曾拔过群众的萝卜”的微博后，针对那些试图污蔑、玷污抗日英烈，丑化人民英雄，侵害社会公德的历史虚无主义者进行的评价。
郭松民认为，革命先烈不容亵渎，人民英雄不容玷污，每个公民都有自觉维护社会公德，维护人民大义的义务和责任。法院应依法驳回黄钟、洪振快的全部诉讼请求。

Both courts upheld the lower courts’ findings in favor of Guo and Song, and denied Huang's and Hong’s requests for relief.

In doing so, both courts upheld the defendants’ claim that it was unclear whether their posts were directed at Huang and Hong personally. As the First Intermediate People’s Court put it:

Looking at the content of the Weibo at Issue, it was an expression of Guo Songmin's evaluation of the historical nihilists' outright rejection of everything in mainstream ideology, and it neither mentioned anyone by name nor carried implication that it was directed at Huang Zhong or Hong Zhenkuai.
从涉诉微博内容来看，是郭松民针对历史虚无主义这一社会思潮一贯否定性评价的表达，并未指名道姓，也不存在以影射方式暗指黄钟、洪振快的情形。

The First Intermediate People’s Court went on to imply that, even if Guo had mentioned Huang and Hong by name, his speech would have been protected:

While on its face the "Details" article was an investigation into the details surrounding specific heroic deeds during the history of China's War of Resistance Against Japan, it was in fact a reevaluation of the historical position and historical actions of the the War of Resistance as represented by these heroic actions, in particular the people's united front to oppose Japan that was lead by the Chinese Communist Party.
. . . .
One should say that this article did, to a certain extent and to a certain degree, hurt the nationalist and historical feelings of the public. And given the significance of this, as the writer and editor of this article Huang Zhong and Hong Zhenkuai should have foreseen that this article might engender commentary, response, and criticism, even public reaction, and therefore owe a relatively high duty of tolerance thereto. 

然而，《细节》一文虽然在形式上是对我国抗日战争史中的一个具体英雄事迹细节的探究，但它实质上是对这起英雄事迹所代表的抗战史尤其是中国共产党领导下的抗日民族统一战线的历史地位和历史作用的再评价。
. . . .
应该说，该文在一定范围和一定程度上伤害了社会公众的民族和历史情感。在此意义上，黄钟、洪振快作为该文的作者和编辑，应当预见到该文所可能产生的评价、回应、批评乃至公众的反应，并因此对后者负有较高的容忍义务。

The Second Intermediate People’s Court followed the First Intermediate People’s Court in finding that Huang and Hong “owed a relatively high duty of tolerance” given that:

Inappropriate statements and critiques of these heroes and heroic events will hurt the nationalist feelings of the general public, and are extremely likely to evoke the dissatisfaction, and even strong language, from the general public.
对这些英雄人物和英雄事迹的不当言论和评价，都将会伤害社会公众的民族感情，极易引发社会公众的不满甚至严词批评。

Both courts’ judgments gave similar descriptions of the events surrounding the “Five Heroes of Wolf Tooth Mountain.” Here is the First Intermediate People’s Court’s version:

The victory of the Chinese people in the War of Resistance Against Japan was China's first comprehensive victory against an invading foreign enemy in modern times. The central role played by the Chinese Communist Party was key to China's victory in the War of Resistance Against Japan. The Eighth Road Army's "Five Heroes of Wolf Tooth Mountain" were a heroic group formed in the War of Resistance Against Japan, and are one of the prominent examples of how the people of China will not succumb to force and are willing to give their lives for their country. The spirit of fearless sacrifice and unyielding commitment to national integrity that they displayed became the precious spiritual treasure of the collective historical memory of the Chinese people.  

中国人民抗日战争胜利，是近代以来中国抗击外敌入侵的第一次完全胜利。中国共产党的中流砥柱作用是中国人民抗日战争胜利的关键。八路军“狼牙山五壮士”是抗日战争中产生的英雄团体，是中国人民不畏强暴，以身殉国的杰出代表之一。他们所展现出的大无畏牺牲精神和坚贞不屈的民族气节已经成为中华民族的共同历史记忆和宝贵精神财富。

The phrase “prominent examples of how the people of China will not succumb to force and are willing to give their lives for their country” (中国人民不畏强暴，以身殉国的杰出代表) used by the Court is identical to a phrase used by Xi Jinping in a 2014 speech commemorating the 69th anniversary of the “Chinese people’s victory in the War of Resistance Against Japan.” The text of the speech was published by Xinhua under the title “The Chinese People’s Eyes Are Clear, and Will Not Tolerate a Single Grain of Sand” (中国人民的眼睛里决容不下沙子). In that speech President Xi said:

Heroic groups, such as the Eighth Road Army's "Five Heroes of Wolf Tooth Mountain,” the New Fourth Army’s “Liulaochuang Company,” the Eight Women Warriors of the Northeast United Resistance Army, and the 800 Heroes of the Guomindang Army were prominent examples of how the people of China will not succumb to force and are willing to give their lives for their country. This is what is known as “Steadfast to the end, they could not be daunted. Their bodies were stricken, but their souls have taken Immortality” 

八路军“狼牙山五壮士”、新四军“刘老庄连”、东北抗联八位女战士、国民党军“八百壮士”等众多英雄群体，就是中国人民不畏强暴、以身殉国的杰出代表。正所谓“诚既勇兮又以武，终刚强兮不可凌。身既死兮神以灵，魂魄毅兮为鬼雄。”

The latter quotation is from the poem “Battle” (國殤) attributed to Qu Yuan (屈原), and the translation is from Arthur Waley’s “A Hundred and Seventy Chinese Poems.”