Chinese student at University of Minnesota jailed for tweets made while in the US: a legal analysis

More bad news for those who claim that China’s political system is of no concern to those outside of China: the long arm of state censorship reaches all over the world.

Luo Daiqing (罗岱青), an undergraduate at the University of Minnesota from China, was detained on July 12, 2019 in Wuhan (presumably while home on summer vacation) for tweets he posted satirizing Xi Jinping in September and October of 2018. (Here’s the news report by Bethany Allen-Ebrahimian that brought this to my attention.) Here are some thoughts, based on what appears in the court judgment. The judgment, by the way, appears to have been immediately harmonized off of China’s court judgments website following Bethany’s story — congratulations to Bethany on her wide readership! — but she has kindly sent me the PDF she managed to print off the website before the report disappeared. (That copy has some parts — fortunately unimportant — obscured by a pop-up; here’s another copy that’s missing the last paragraph and the judges’ signature block, but does show the parts obscured in the first copy.)

He was sentenced first to ten days’ administrative detention under the Security Administration Punishment Law — it’s not clear under which article, but given his subsequent criminal punishment, we can probably assume it was Article 26(4): “Other acts of picking quarrels and stirring up trouble” (其他寻衅滋事行为). Ten days is less than the maximum 15-day sentence under this provision, so apparently the authorities thought it was bad but not really bad.

Apparently someone had a rethink and nobody dared to object: on the day of his release (July 22), Dai was immediately subjected to criminal detention (刑事拘留), and formally arrested (逮捕) on August 29. (The term usually translated as “arrest” (daibu 逮捕) is a term of art in Chinese law, referring to a particular stage of the criminal process. It does not mean simply “not free to leave” as it does in US law.) On November 5, 2019, he was convicted of violating Article 293 of China’s Criminal Law (covering offenses of “picking quarrels and stirring up trouble”) and sentenced to six months’ imprisonment. He was credited with time served since his original detention on July 12, so the sentence was to run until Jan. 11, 2020, a date that has already passed. He should be out by now.

This case raises a plethora of legal issues. Here are the ones the occur to me right away.

Does tweeting anything constitute an offense under the SAPL?

The court judgment doesn’t say under which provision of the SAPL Dai was sentenced. One suspects it was Article 26(4), which punished “other acts of picking quarrels and stirring up trouble” (寻衅滋事). But the SAPL never defines “picking quarrels and stirring up trouble.” By implication, the other parts of Article 26 suggest what it means: (1) gathering a gang together for fighting/beating, (2) chasing and obstructing other people; (3) forcibly taking or demanding, or wilfully destroying or occupying, public or private property. It’s hard to see how tweeting, even if libelous or otherwise offensive, can be fairly interpreted as an act of the same type as the first three.

Does tweeting anything constitute an offense under Article 293 of the Criminal Law?

The Criminal Law also has a provision on “picking quarrels and stirring up trouble” (henceforth just “picking quarrels”), but it is actually much more precise than the SAPL. Unlike the SAPL, the Criminal Law does not punish the broad, undefined offense of “picking quarrels”; that is just an umbrella term for more specifically defined offenses. The relevant article of the Criminal Law, Art. 293, states, “In the event of one of the following acts of picking quarrels and stirring up trouble, …” (emphasis added). It then lists four relatively specific acts — or at least more specific than the vague “picking quarrels and stirring up trouble.” Things that could be called “picking quarrels and stirring up trouble” but that do not fall within one of the four listed categories are not crimes. Moreover, as Jeremy Daum has pointed out in his excellent analysis of this crime [JAN. 24, 2020 UPDATE: See Jeremy’s Twitter thread on this case here], there is a further judicial interpretation of Art. 293 that narrow its scope even more. Thus, although Chinese law did, and in some places still does, have vague catch-all offenses, “picking quarrels” is not one of them. Nevertheless, it is clear that the authorities treat it as such.

This case is one example. Although the court stated that Dai was sentenced under Article 293, it carefully avoided stating which sub-paragraph applied. Here are the possibilities (using Jeremy Daum’s translation):

1) arbitrarily attacking people with heinous circumstances, or

2) “chasing, intercepting, berating or intimidating” others, where the “circumstances are heinous”;

3) forcibly taking, destroying or occupying public or private property where the circumstances are serious; and

4) making a commotion and causing serious disorder in a public place.

So which is it? The only one that seems remotely possible is (4), and that’s what the court seems to have gone for. The judgment stated that Dai’s postings “caused others to gather around to watch” (引发他人围观) and “created an odious social influence” (造成恶劣社会影响). Jeremy’s blog post discusses the possible bases under Chinese law for considering the internet to be a public place under subparagraph 4, as well as the difficulties — please read it to understand the details. That Article 293 has been stretched beyond any reasonable point of plausibility in this case is clear, however, when we remember that Twitter is blocked in China. The “public place” here is outside of China, and yet China still claims jurisdiction to punish creating disorder in it.

Can you be sentenced under the SAPL for an act committed outside of China?

In a case like this, the answer would appear to be no. Article 4 says, “This law shall, unless [another] law specifically stipulates otherwise, apply to acts occurring within the territory of the People’s Republic of China that violate security administration.” (“在中华人民共和国领域内发生的违反治安管理行为,除法律有特别规定的外,适用本法.”) There is an exception, not relevant here, for acts committed on Chinese ships or aircraft.

Can you be sentenced under the Criminal Law for an act committed outside of China?

Yes, in principle. Article 7 of the Criminal Law states,”This law shall apply to the commission outside of the territory of the People’s Republic of China of crimes stipulated in this law by citizens of the People’s Republic of China, but where the maximum punishment under this law is three years or less, it is permitted not to prosecute.” (“中华人民共和国公民在中华人民共和国领域外犯本法规定之罪的,适用本法,但是按本法规定的最高刑为三年以下有期徒刑的,可以不予追究.”) The maximum sentence under Article 293 is five years, so prosecution is clearly permitted. Even if the maximum sentence were three years or less, the Criminal Law merely says that the authorities may decide not to prosecute. It does not forbid prosecution.

Can you be sentenced for the same act under both the Security Administration Punishment Law and the Criminal Law?

This seems a little unfair. The text of the SAPL would seem to say no: Article 2 says that if an act of a specified nature constitutes a crime, it shall be punished under the Criminal Law; if it does not constitute a crime, it shall be sanctioned with an administrative punishment imposed by the police. (“扰乱公共秩序,妨害公共安全,侵犯人身权利、财产权利,妨害社会管理,具有社会危害性,依照《中华人民共和国刑法》的规定构成犯罪的,依法追究刑事责任;尚不够刑事处罚的,由公安机关依照本法给予治安管理处罚。”) Thus, to impose a sentence under the SAPL seems necessarily to involve a judgment that the act in question does not constitute a crime, and therefore punishing it also as a crime is inconsistent.

Why was the case heard in secret?

The judgment states that the trial was held “not publicly”. There are rules about this. Article 188 of the Criminal Procedure Law states, “First-instance proceedings by people’s courts should be public. Cases involving state secrets or personal privacy shall not, however, be tried publicly. In cases involving commercial secrets where a party requests a non-public trial, the trial may be non-public.” ( “人民法院审判第一审案件应当公开进行。但是有关国家秘密或者个人隐私的案件,不公开审理;涉及商业秘密的案件,当事人申请不公开审理的,可以不公开审理.”) None of the exceptions seem to apply here, unless the authorities are implicitly endorsing the old joke in which a man who shouts, “Li Peng is an idiot” is prosecuted for revealing state secrets.

Why has the case disappeared from the official government website for case reports?

The judgment in this case was originally posted on China Judgements Online, an official site where all court judgments are supposed to be posted, unless a specific exception applies. Shortly after Bethany’s article appeared, it disappeared. This takedown, like the secret trial, appears to violate China’s rules about the posting of judgments. According to a 2016 Supreme People’s Court document, courts must upload all legally effective judgments (as this one is) unless a specified exception applies. Those exceptions are (1) cases involving state secrets or personal privacy; (2) cases involving crimes by minors, (3) cases resolved via mediation, (4) divorce cases and cases involving minors and guardianship, and (5) other cases deemed unsuitable by the court for online publication (其他不宜在互联网公布的).

Aha!, you say. Vague as the rule is, it does seem to allow unlimited discretion not to post cases, so I can’t say that failing to post violates the SPC’s rules. But I have an answer: the same rules stipulate (Article 6) that where a case is not posted online, certain information about the case must nevertheless be posted: the case number, the court, the date of the judgment, and the reason for not posting online (不在互联网公布的裁判文书,应当公布案号、审理法院、裁判日期及不公开理由,但公布上述信息可能泄露国家秘密的除外). It is impossible to find even this information about the case on the China Judgements Online website. Try it yourself.

Conclusion

If you have gotten this far and it is not obvious by now, here’s the bottom line: this prosecution represents an alarming expansion of criminal liability for Chinese citizens. The words of Article 293 and its judicial interpretation don’t seem to matter at all any more. “Picking quarrels” is clearly the new “hooliganism,” a crime that was abolished in the mid-1990s. At the same time, the authorities seem a little embarrassed by this case, so they are hiding it.

Posted in: Law

2 thoughts on “Chinese student at University of Minnesota jailed for tweets made while in the US: a legal analysis”

  1. Fairness obliges me to dissent here. It is not a work of constitutionalism or human rights, but it is defensibly consistent with the criminal statute and its judicial interpretation. The relevant lines (in Chinese for brevity are):

    Criminal Law
    第293条 有下列寻衅滋事行为之一,破坏社会秩序的,处五年以下有期徒刑、拘役或者管制:
    (二)… 辱骂 … 情节恶劣的;
    plus the clarification in the Joint Interpretation on Internet Speech Crime
    第五条利用信息网络辱骂 … 情节恶劣,破坏社会秩序的,依照刑法第二百九十三条第一款第(二)项的规定,以寻衅滋事罪定罪处罚。
    with 情节恶劣 as clarified in Joint Interpretation on Causing Disturbances:
    第三条 … 辱骂 … 破坏社会秩序,具有下列情形之一的,应当认定为刑法第二百九十三条第一款第二项规定的“情节恶劣”:
    (一)多次… 辱骂… 他人,造成恶劣社会影响的;

    If it is (4), there would at least be a claim about 起哄闹事 (raising a commotion) and 公共秩序严重混乱 (serious disruption of public order). Such phraseology was not in the judgment. The term 恶劣社会影响 is. So, it is (2).

    The key word is 辱骂, which ChinaLawTranslate translates to “berate”. They may be playing it conservative (by eliminating qualifiers), but the second glyph by itself is “berate” (speak in a critical way vehemently/loudly/angrily). The first glyph serves as an adverb, for “insultingly”. So basically it is vehement critical expression that damages dignity and reputation.

    You can see the emphasis on 40 times, to satisfy “多次” (multiple times). They also mentioned “丑化国家领导⼈形象” (twisted the image of state leaders) and “侮辱国家领导⼈” (insult of state leaders). Well, OK, uh, at least he wasn’t praising them and the pictures are not very dignified. They did also mention 虚假 (false), but that may just be to defeat any justification by claim of Truth.

    For the 破坏社会秩序 part, the Chinese allows the interpretation that 辱骂 by itself is a means of doing so (a possibility ChinaLawTranslate turned into a certainty in its translation). But in this case, they might have an independent base which may explain why he was picked when the witness, a Mr. M (马某), was not, though he used to put up similar posts.

    It would seem Mr. Luo impersonated Mr. M when putting up his “insulting” pictures. In addition to the base wrongness of impersonation, in China such pictures risk both legal and social (from “patriots”) liability. If, for example, Mr. M got hit by administrative or criminal sanctions for the acts of Mr. Luo, there would be a clear perversion of justice that would harm social order. It would also conform with a layman’s plaintext read of 情节恶劣.

    So, if you ignore the part all this could be avoided if greater weight was given to the Constitution’s freedom of speech provision, it is at least statutorily defensible.
    =
    For the public part, it’s not part of the 293(2) definition. Second, as a matter of fact, Chinese do find their way to Twitter, including Mr. M (who claimed he had a never-used registration which was later deleted). Third, the matter of law is actually interesting because as far as I know, Chinese legislation (including subordinate) does not impose an obligation to refrain from viewing Twitter. If you can access Twitter in China without VPN (or other “get-around” tools), you are not liable.

    Chinese administrative law concepts are heavily based on German-Japanese theories. Since there is no obligation yet the Great Firewall acts to prevent you from doing so, its action is one of 即時強制 (immediate enforcement, in German Unmittelbarer Zwang). The administrative body is allowed to take direct action, but you are not under obligation. So, is Twitter a public space in Chinese law (you are under no obligation to not go there … the State just seems to make it hard for you to do so)?
    =
    For the final dissent, the point of double punishment is obvious but since public security offenses are a variant of administrative offence, and they are designed for quick play by non-legal professionals (police, in this case), for “either-way” offenses the chance of an honest misjudgment in fact or law is there.

    While a certain restraint might be expected, if serious “mistakes” can’t be corrected, then the logical outcome is that suspects of either-way offenses will be held in criminal detention while the authorities cogitate on which one they want.

    Further, if there are legal flaws in the public security punishment in the first place, what may have happened is that the punishment was technically invalidated on review. In any case, the judge took care to count it towards his criminal sentence, so at least in effect he wasn’t actually punished twice.

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