Sunday, September 11, 2016

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

Also from this Blog:
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."





. . . .

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 
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?"
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!
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.
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. 
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.
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. 
. . . .
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.
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.  
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” 
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.”