Feldman: China's limited free speech on Web
What's the opposite of free speech? If you answered, "totalitarian censorship," you are right -- and you are old.
In the Internet age, censorship is all about allowing partial, temporary free speech, then shutting it down once enough has been said. The innovator, as usual these days when it comes to nondemocratic governance, is China, where the leading microblog site, Sina Weibo, unveiled its modified censorship model this week.
Users get 80 points. Monitors will take away points for violations. These include the censors' old favorite, criticizing the government. You can also lose points for spreading rumor (which I thought was the whole point of the Internet) or promoting cults (a provision apparently aimed at the banned spiritual movement Falun Gong). The monitors will also scour your comments for puns or other circumlocutions used to avoid censorship in the past. If you run out of points, you're cut off.
If free speech is so threatening, why don't the powers-that-be in China just shut down the microblogs altogether? Part of the answer is that with 324 million users, Sina Weibo has become too big to fail, or at least too much a part of normal Chinese life to be eliminated. But the deeper reason to keep the masses microblogging is that the Chinese government reaps important gains from it. This is not your father's Communist Party. Nor your grandfather's. China's leadership is engaged in a complicated, risky process of trying to gain some of the advantages of democratic government without the disadvantage of putting itself up for direct election. Free speech is a crucial part of the experiment.
A major benefit of allowing people to complain on the Web is that it allows society to blow off steam. This is a venerable value of free speech, recognized by U.S. Supreme Court Justice William O. Douglas in a famous dissent in 1951, responding to the court's choice to uphold the conviction of 11 American Communists for teaching subversive ideas. "The airing of ideas releases pressures which otherwise might become destructive," Douglas wrote. If such release is beneficial in a democracy, it's doubly so in a place where there is no robust public sphere.
Another advantage of limited free speech is that it allows the government to gather information about public concerns. Chinese authorities can't rely on ordinary polling data, because pollsters in China can't operate freely, lest they learn of serious opposition to the government. And it's impossible to spy on 1.3 billion people all the time. The microblogs serve as "the abstract and brief chronicles of the time," as Hamlet called the theater.
Once the microblogs have conveyed what people are thinking, the government can respond to their concerns, as it did last summer after the Zhejiang train derailment when Premier Wen Jiabao made a special visit to the site in apparent reaction to public frustration with bureaucratic silence and denials. Responding to public opinion is the hallmark of accountable government. Without elections to provide oversight, China's leaders need every opportunity they can get to demonstrate that they respond to people's concerns. Seen this way, limited free speech, followed by government action, is an important part of how the Chinese Communist Party seeks to sustain its legitimacy.
The party is utterly aware that free speech could help bring the government down. That is why it is experimenting with freedom in moderation, and using quasi-private entities like Sina Weibo as its proxies. China's leaders are trying to gain the advantages of free speech without paying its full price. First Amendment absolutists will probably raise their eyebrows at this. After all, Americans have been raised to believe that free speech has a life of its own; that truth is great and shall prevail.
Yet there is an extraordinary precedent for China's censorship model: the history of free speech in England and the U.S. before the modern era. When it was drafted, the First Amendment to the U.S. Constitution didn't contemplate the radical freedom Americans now enjoy. Its language, drawn from English precedents, was aimed essentially at prohibiting what is called prior restraint: government censorship of books and newspapers before they could be published. As with the Sina Weibo rules, once you had spoken or written, you could still be punished for what you had freely said. You were accountable under the crime of seditious libel.
That law punished -- you guessed it -- criticizing the government, spreading false rumor and impugning religion. It was, according to the great English legal scholar William Blackstone, "necessary for the preservation of peace and good order, of government and religion." It existed in the U.S. even after the Constitution was ratified, sustaining convictions through the late 18th century. The United Kingdom didn't officially take it off the books until 2009.
Censors, take note. Or on second thought, please don't. I want to keep all 80 of my points in case I need them.
Noah Feldman, a law professor at Harvard University and the author of "Scorpions: The Battles and Triumphs of FDR's Great Supreme Court Justices," is a Bloomberg View columnist. The opinions expressed are his own. His email address is email@example.com.