“Freedom of thought” is reflected at the social level as “freedom of speech,” and “freedom of speech” at the legal level appears as the principle that one can never be “punished for what one says.”
It is necessary to distinguish “punished for what one says” from crimes committed by means of speech, such as incitement, defamation, insult, agitation, deception, and so on. There are countless offenses carried out through speech, and these convictions are not necessarily unreasonable.
But one must always remain clear-headed in distinguishing this: none of these charges can be “punished for what one says”; the basis for conviction can never be the speech alone, but must rest on the purpose to which the speech is directed or the consequences it produces.
For example, if A says B is a swindler, then no matter whether what A says is true, this assertion itself does not constitute grounds for conviction. Only when A says this to many people, intentionally or unintentionally causing B’s legitimate rights and interests (such as reputation or the peace of normal life) to be harmed, can one say that A has committed defamation. At that point, if what A said turns out to be entirely true, the conviction may be mitigated or remitted; but sometimes, even if every word is true, if it involves privacy and is maliciously spread, it can still be punished. In short, here the rightness or wrongness of the words themselves is not the decisive factor; what truly determines conviction are their social consequences.
The purpose of the legal system is precisely to maintain social order, and not directly to uphold truth or justice or the like. Therefore, the law naturally takes as its basis the social impact of actions rather than their intrinsic reasonableness. Only because certain questions of reasonableness are precisely what people care about most widely do they become inseparable from social impact; thus, at times, questions of reasonableness are also drawn into legal adjudication. In other words, supporters of the freedom of reason support freedom of speech: everyone legislates for their own speech by themselves, without being bound by external law; yet since speech is after all an important part of social public life, a legal system constructed for the sake of maintaining social order cannot avoid concerning itself with people’s speech. But when the law concerns speech, it must not infringe the freedom of reason. Therefore, when the problem lies only within speech itself (that is, within reason itself), the law has no right to intervene, because law must ultimately make a case with reason, and not the other way around (this will be discussed in another essay).
The degree of punishment also takes into account the offender’s motive. Someone who merely vents feelings through speech but has no intention of causing any destructive consequences is engaging in a negligent act without criminal intent; whereas an intentional act refers to a person who commits a crime through speech and has in effect already voluntarily relinquished the freedom of reason—that is, he uses speech as a “tool” rather than as something that is itself self-legislating and self-purposed.
For example: “I love/hate him, so I want to use such and such language to vent my emotions.” The motive of such speech is free; that is to say, motives of this sort cannot be considered in conviction. Of course, you can also rewrite the above sentence as: “I want to use such and such language for the purpose of venting my emotions.” Such a construction seems as though speech is being used as a tool, but in fact it is not. In reality, “emotion” should be regarded as the ultimate end, or rather as a non-end end; that is to say, to say “doing something is for the sake of venting my emotions” actually means that “doing something” itself is already the arbitrary purpose I have chosen, and there is no need to ask for a further layer of purpose. (This will be discussed in another essay.)
But if the reason is this: “I hate him, so I want to cause him harm, so I spread speech to slander him.” At this point, “speech” is no longer an end in itself, but has become a means to achieve another end (harming him). At that moment, this person has already voluntarily relinquished the freedom of speech and allowed it to degenerate into a tool. (Of course, the end of “harming him,” if one does not try to implement it by any means at all, but merely thinks about it in one’s mind, is also free, and cannot be punished on this basis.)
Then are the cases we see in which people are “punished for what they say” in the name of “endangering national security” reasonable? Indeed, if someone’s speech has caused clear harm to the country, or to social stability, then it may be possible to establish a charge on that basis. But legal adjudication requires evidence, and it is quite difficult to prove that some speech has caused actual harm to the country. Compared with proving that a certain speech has caused specific harm to a particular person, proving that it has caused widespread harm to the majority of an entire country is quite difficult. In fact, speaking ill of one’s country does not necessarily harm social stability; the United States, for instance, has used all kinds of forms of self-mockery and, in a certain sense, has instead promoted cohesion. And speaking well of one’s country does not necessarily benefit social stability either; the Chinese people have long grown tired of all kinds of sycophantic praise, and it may not always have a positive effect. In other words, whether a certain speech harms the country cannot be judged from the speech itself, but must be judged from the actual consequences it has produced or may produce. And whether those consequences are good or bad in the end (except in cases such as leaks, where it is relatively easy to judge) is often difficult to assess and measure with conclusive evidence. By the principle of the presumption of innocence, in the absence of evidence one should presume innocence. Therefore, convictions in the name of “endangering national security” and the like can at most apply to leaks and similar acts whose consequences are relatively easy to define, and are difficult to apply to other so-called speeches that denigrate the country.
October 5, 2008
Translated from the Chinese original with AI assistance. The original text is authoritative.
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