Monday, April 17, 2023

How Many People Have Been Punished for Political and Religious Speech in China?

In 2022, I published "State Prosecutions of Speech in the People’s Republic of China: Cases Illustrating the Application of National Security and Public Order Laws to Political and Religious Expression," (https://ssrn.com/abstract=4168412), a free casebook containing my translations of over 100 documents produced by agencies of the government of the People's Republic of China between 1998 and 2020. Each of those documents reflected the outcome of a case where a PRC citizen was subjected to some form of punishment by the PRC government for their political or religious speech.

As I was compiling the casebook, I was concerned that readers might be misled into believing that it represented a comprehensive accounting of all the people who had been imprisoned for their political and religious speech in the PRC. I was therefore careful to note in the introduction that it was not a "complete" collection of every case involving freedom of expression: 

The sheer volume of state prosecutions of offenses involving speech in the PRC would make assembling a complete collection of translations impossible for an individual such as myself. Indeed, it would seem that a dedicated researcher could fill at least one volume solely with cases involving individuals subjected to administrative detention for referring to police as "dogs." By my estimation, based on a brief review of the documents in my archives, there are dozens of additional court judgments that meet the criteria discussed below, but which I lack the time and resources to translate. (p. 6). 

The "criteria" I mentioned was that I had only included cases where:

  • The conduct for which an individual was prosecuted was exclusively or primarily "speech," where "speech" is defined broadly to include conduct such as publishing social media posts, essays, and books, as well as encouraging people to engage in "speech plus" conduct such as joining associations and protesting in public venues.
  • The speech being prosecuted related only to political or religious issues and actors.
  • The outcome would have been different under U.S. "constitutionalism."

In addition to those cases in my archive at the time I published "State Prosecutions," the PRC government has continued to prosecute people for speech related conduct. Here are some of the examples of which I am aware:

  • On November 7, 2022, a court sentenced artist Wang Yuwen and his wife Wang Liqin to four years and 30 months imprisonment, respectively, for social media posts that incited subversion of state power.
  • On December 28, 2022, a court sentenced house Christian worshiper Long Kehai to two years imprisonment for social media posts that disturbed the peace.
  • On February 10, 2023, a court sentenced Ruan Xiaohuan, the writer behind the "Program-Think" blog (编程随想的博客  https://program-think.blogspot.com/) to seven years imprisonment for blog posts that incited subversion of state power.
  • On March 31, 2023, a court sentenced civil rights lawyer Qin Yongpei to five years imprisonment for social media posts that incited subversion of state power.
  • On April 10, 2023, a court sentenced civil rights lawyers Ding Jiaxi and Xu Zhiyong to 12 and 14 years imprisonment, respectively, for subversion.

So the question alluded to in "State Prosecutions" remains: How many people in the PRC have had their rights to freedom of speech and publication (as those rights are understood in the U.S. and similar jurisdictions) violated by the PRC government?

The easiest way to answer this question is "Everyone who has lived in the PRC since its founding." This is because, notwithstanding the fact that the PRC Constitution explicitly grants citizens the right to freedom of "speech" and "publication," the PRC government imposes prior restraints on the publication of every newspaper, magazine, and book of any type, enforced by local governments and overseen by a central government agency responsible for all press and publication in the PRC. PRC courts have held that it is irrelevant whether or not the content of the publications is legal, or that a defendant had no intent to earn a profit. Rather, the only criteria is whether the defendant engaged in publishing without first obtaining authorization from the government. For example, in 2009 a Beijing court imprisoned four individuals for one to three years on the grounds that they printed The Bible and "other books of a religious nature" without the authorization of the press and publication agency. The court stated:

[A]n intent to obtain illegal revenue is not a necessary prerequisite for the crime of illegal operation of a business. Rather, all book publishing and printing must be authorized by publishing agencies pursuant to a signed Book and Periodical Printing Commission and in accordance with strict registration procedures. 

See: Shi Weihan, Tian Hongxia, Li Fengshan, Zhou Xin, Cheng Xiaojing, Lü Yuequan & Li Zong Criminal Judgment, (2009) Hai Criminal First Instance No. 594 (石维翰, 田红霞, 李凤山, 周鑫, 程小京, 吕跃全, 李棕刑事判决书, (2009) 海刑初字第594号), "State Prosecutions," pp. 91-107.

A slightly smaller number of people, though still in the hundreds of millions, have had their constitutional right to freedom of expression violated by the PRC government's use of the Great Firewall of China to restrict people in the PRC from accessing information online. I personally experienced this censorship as early as 2003 while in an Internet cafe in Beijing. I described the experience in the Congressional-Executive Commission on China's 2003 Annual Report as follows:

Tests performed by Commission staff indicate that systems providing this type of increasingly fine-tuned censorship have already been deployed at some Internet cafes. Specifically, Web pages containing sensitive content on sites that are otherwise accessible begin loading, but before they are completely visible the page is replaced by a message informing the user that the content the user is trying to access is forbidden. The browser is then automatically redirected to a government-authorized general interest Web site, but the user is not told why the site was prohibited or to whom an appeal should be submitted to have the prohibition removed.
https://www.cecc.gov/publications/annual-reports/2003-annual-report

One could argue, however, that many, if not most, people in the PRC have never attempted to exercise their right to publish (online or off), and have never wanted to read a publication or website that the PRC government has banned, censored, or blocked, and therefore those people have not had their rights violated by the PRC government's prior restraint and Internet censorship regimes.

Another way to answer this question would be to count every person that has been subjected to any form of State-imposed punishment for exercising their constitutional right to freedom of expression. This would be impossible, however, because these punishments take so many forms, including:

  • "Inviting People to Tea": Wu Gan, who was sentenced to eight years imprisonment for committing the crime of subversion of state power in 2017, wrote: "'Drinking tea' usually refers to being interviewed by public security or state security officials because of your speech or your civic actions." See "Wu Gan's Self-Defense and Examples of His 'Subversive' Writings." http://blog.feichangdao.com/2022/03/wu-gans-self-defense-and-writings.html
  • "Knock and Warn" and "Education and Salvation": This term (in Chinese: 敲打告诫, 教育挽救) is used by PRC police to describe how they make repeated visits to people's homes and call them into police stations to issue warnings and pressure them to sign "guarantees." For example, in 2017 PRC police repeatedly undertook "knock and warn" and "education and salvation" work with the poet Wang Zang, ultimately pressuring him to sign a letter promising he would not "publish words and images on foreign websites that damage the reputation and image of the State." See "Translation: Wang Yuwen & Wang Liqin Inciting Subversion Police Prosecution Recommendation." http://blog.feichangdao.com/2023/01/translation-wang-yuwen-and-wang-liqin.html
  • Harassing Family Members: In early 2016, PRC authorities arrested civil rights lawyer Wang Quanzhang on suspicion of committing the crime of subversion of state power. Later that year his wife, Li Wenzu reported that government authorities were preventing her from renting an apartment and sending her child to kindergarten. See "Photo of Weeping Wife of Jailed Chinese Lawyer Wang Quanzhang Disappears From Sina Weibo." http://blog.feichangdao.com/2016/09/photo-of-weeping-wife-of-jailed-chinese.html
  • Disbarment: Civil rights lawyer Wang Yu was detained at the same time as other lawyers at the Fengrui Law Firm (see "State Prosecutions," Chapter 6, Associations: The "7.09" Rights Defenders), but there is no indication Wang was criminally prosecuted. Instead, the government canceled Wang's certificate to practice law on the grounds that, after the government shut down the Fengrui Law Firm, she was not employed by another law firm.
  • Threatening Livelihoods: In 2020, shortly after Qinghua University constitutional law scholar Xu Zhangrun published a series of articles critical of the PRC government's response to the COVID pandemic, his employer fired him from the job that he had held for two decades, confiscated his pension and all accrued benefits, withdrew his accreditation as an educator and demanded that he vacate his apartment on the university campus. See "A Farewell to My Students." https://www.chinafile.com/reporting-opinion/viewpoint/farewell-my-students
  • Tax Audits: In 2009, shortly after civil rights lawyer Xu Zhiyong published a report that challenged China's official explanation that the deadly riots that broke out across Tibet in March 2008, were inspired by "overseas forces," the PRC government served his Gong Meng Consulting Company Limited with a "Notice of Tax Administrative Sanctions" imposing fines of 1,420,000 yuan (about USD 200,000). See "Xu Zhiyong Detained (Again), China's Web Sites Censor It (Again)." http://blog.feichangdao.com/2013/07/xu-zhiyong-detained-again-chinas-web.html
  • Party Disciplinary Actions: In 2016, a Beijing district committee of the Communist Party of China "pledged severe intraparty penalties for Ren Zhiqiang, a celebrity blogger and property developer whose accounts were closed for allegedly spreading illegal information." According to state-sponsored media, the CPC issued a circular saying Ren, "has been releasing illegal information and making inappropriate comments online, resulting in a vile influence and damage to the party image." See "Party Puts Ren Zhiqiang on One Year Probation for Online Posts." http://blog.feichangdao.com/2016/05/party-puts-ren-zhiqiang-on-one-year.html
  • Extended Detention: In April 2011, the artist Ai Weiwei was detained at the Beijing Airport and his assistant, Wen Tao, was grabbed off the street by four plain clothes officers. Ai and Wen were released in June and were not charged.

Adding to the difficulty of using these punishments as a measuring tool is the fact that most of these punishments doubtless go unreported.

In addition to the foregoing, in the PRC the police can impose formal punishments, including issuing written citations and fines, as well as ordering individuals to serve time in detention, without a trial before a judge. The legal basis for this is provided by the "Public Security Administrative Punishments Law." That law states that if an act "disrupts public order, hampers public security, infringes upon the rights of persons and property, or hampers social administration" but is not serious enough to warrant criminal punishment, public security authorities can impose punishments including warnings, fines, revocations of licenses, and "administrative detention." These punishments are meted out directly by the police.

Several examples of the police using administrative punishments to punish constitutionally protected freedom of expression can be found in "State Prosecutions," Chapter 10: Seditious Libel on Social Media. For example, in 2017, a court found that police did not violate Feng's rights by subjecting him to five days administrative detention for referring to Xi Jinping as "fat pig," "steamed bun," and "spendthrift" in WeChat posts.

Unfortunately, there is no single publicly available official resource that might provide insight into how many similar cases there might be. While some provincial governments do provide online databases of administrative punishments, they have been censored to remove evidence of people being punished for speech-related conduct (see "Disappearing Government Records Show Police Ordering People, Companies to Stop Using Foreign VPNs" http://blog.feichangdao.com/2020/11/disappearing-government-records-show.html).

The best resource I am aware of is a list compiled by the operator of the @SpeechFreedomCN Twitter account. According to that list, there are at least 1,800 publicly reported cases of people being subjected to administrative punishments for speech related conduct. See: "Inventory of Literary Inquisition Incidents in China in Recent Years" (中国近年文字狱事件盘点).  https://docs.google.com/spreadsheets/d/1CQBeBpP2-A45lw-zr6mneDuPtSBNWg_8KqgXpWMLcbo/edit#gid=0.

In many jurisdictions around the world one could come up with a more precise answer to the question by determining how many people had been formally convicted and imprisoned by the judiciary for speech related conduct in the modern era. Unfortunately this is difficult, if not impossible, to determine for the PRC, because the PRC government deliberately censors information relating to its prosecutions of speech. I have described this in a previous blog post: "Censorship of Court Judgments in the PRC." https://blog.feichangdao.com/2022/11/censorship-of-court-judgments-in-prc.html.

Just because it is impossible to determine the exact number of convictions does not mean that it is not worthwhile to attempt to come up with a reasonable approximation. Such an approximation would be helpful in furthering meaningful and constructive discussions of what "freedom of expression" (and the lack thereof) means in the PRC today (as opposed to historically). In order to provide a framework for such discussions it would first be helpful to determine what we mean by "today" by defining the relevant time period.

A good starting point is the late 1990's, for two reasons. First, this is when PRC revised its criminal law and changed how it defined certain crimes that had previously been commonly used to punish speech conduct. For more on this see "Imprisonment for Crimes No Longer in the Criminal Law," Dui Hua, December 20, 2017. https://www.duihuaresearch.org/2017/12/imprisonment-for-crimes-no-longer-in.html.

The second reason to set the late 1990's as a good starting point is because that was when the PRC government began punishing people for using the Internet, where so much of today's political and religious discourse takes place. The PRC first connected to the global Internet in 1994 (see http://en.internet.cn/history/history2.html), and almost immediately the PRC government began convicting people of crimes related to using it for speech conduct. For example, in 1998 a PRC court found Wang Youcai guilty of subversion on the grounds he drafted and shared documents via email that "argued for such things as 'gaining political rights, revising the Constitution, eliminating one party rule' and 'establishing a constitutional democratic political system and establishing a system where political power is divided.'" A translation of his court judgment can be found on p. 115 of "State Prosecutions."

Having established that a useful time period would be from the late 1990's to the present, there is one resource that could potentially be used to give us a rough approximation of the number of people in the PRC who have had their rights to freedom of speech and freedom of publication violated by the PRC government: the Congressional-Executive Commission on China's Political Prisoner Database ("PPD")  https://www.ppdcecc.gov.

In the PPD each political prisoner's record is assigned one or more "issues" reflecting what the Commission's staff believed the individual was detained for. One of those categories is "Freedom of Opinion and Expression." Using a downloaded version of the PPD, it would appear that there are at least 5,000 records of individuals detained between 1997 and 2023 that were assigned the issue "Freedom of Opinion and Expression."

When considering whether that number is useful in answering the question posed above, one should keep in mind that it is arguably both under and over-inclusive. With respect to the former, it necessarily excludes cases for which there was never any public reporting, or which the Commission was unaware of or elected to exclude. For example, I was unable to locate any cases included in Appendix II of State Prosecutions, "Individuals Imprisoned for Posting on Twitter," in the PPD.

With respect to the latter, the database includes cases (roughly half of the total) where individuals were detained and released without any indication of their having been formally punished (either administratively or criminally). For example, the PPD includes a record for Chen Pingfu (陈平福 - CECC Record Number: 2013-00392), who was detained and indicted for inciting subversion of state power for publishing 34 articles online with titles such as "Those Intending to Stay the Tide of Democracy Are Opposing the Will of God" and "Official Power is at the Heart of Autocracy, Civil Rights are the Heart of Democracy." Ultimately, however, the procuratorate withdrew its indictment. One could therefore argue that, while Chen may have been a political prisoner during the period of his detention, his rights were, in the end, upheld and not violated.

So, how to answer the question: "How many people in the PRC have had their rights to freedom of speech and publication violated by the PRC government?" My view, based on my familiarity with the available data, is the answer is "it depends on what you are counting":

  • All of China’s 1.4 billion population is subjected to prior restraints on publishing, which would almost certainly be considered unconstitutional in every developed country.
  • All of China’s over 800 million Internet users are subjected to the Great Firewall’s censorship of most major foreign social media and major English and Chinese language news websites.
  • Since the late 1990’s, the number of people who have been subjected to informal and administrative punishments by government agencies for exercising their constitutional right to freedom of expression is likely in the tens of thousands.
  • Since the late 1990’s, the number of people who have been detained for exercising their constitutional right to freedom of expression is likely somewhere in the area of 10-20 thousand.
  • Since the late 1990’s, the number of people who have been imprisoned after being convicted for crimes for exercising their constitutional right to freedom of expression is likely in the thousands.

Translation: Huang Xuqin and Wang Jianbing Inciting Subversion Indictment

On June 14, 2024, the Twitter account "Free Huang Xueqin & Wang Jianbing 释放雪饼" (@FreeXueBing)  posted a copy of the last two p...