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When Free Speech Isn't Free 當言論不再自由

The school year had barely begun when two incidents—both testing the limits of free speech on campus—unfolded at Chinese University and Education University and sent management scrambling for a response.

On Monday, at least three large banners bearing the words “Hong Kong independence” were spotted in various locations at Chinese University, including one that draped across the famous “Beacon” sculpture outside the school’s main library. Within hours, the banners were removed by the school authorities.

A few days later, a sign “congratulating” Education Undersecretary Choi Yuk-lin (蔡若蓮) on her son’s recent suicide appeared on Education University’s Democracy Wall, a public bulletin board for students to express opinions and exchange views. Likewise, the sign was taken down shortly thereafter.

How far should free speech go on campus?

That could have been the end of the controversies had university management not succumbed to the temptation to say a few choice words of their own. In the end, it was the reaction from the school authorities that added fuel to the squabble and escalated them into an all-out war of words that questions how far free speech should go on campus.

When pressed to explain the removal of the pro-independence banners, Chinese University President Joseph Sung (沈祖堯) punted the question but hinted at the notion of illegality, remarking that “as long as [an expression of opinion] is not illegal or disruptive to other people’s learning, we will not have too big of a reaction.”

The accusation of unlawfulness wasn’t explicitly articulated until the following day. In a letter addressed to the student union, a university management committee pontificated that the discussion of independence “violated Hong Kong’s laws and also violated the school’s constant stance of absolutely opposing Hong Kong independence.” The language was so absolute and unequivocal that it left one wondering whether a police crime unit should have been dispatched to Sha Tin.

Pro-independence banner on the Beacon

In an equally absolute and unequivocal tone, Education University President Stephen Cheung (張仁良) decried the sign mocking the death of Undersecretary Choi’s son. At a press conference, an irate and almost teary-eyed Cheung called the behavior “shameful” and “offensive” and said it “overstepped our moral boundaries” and “rubbed salt in another’s wound.”

Cheung went on to apologize to Choi’s family on behalf of the entire university. He also told reporters that an investigation was underway and that a disciplinary committee would decide on the appropriate punishment for the perpetrators. Intentionally or not, the school authorities later leaked CCTV footage of the individuals allegedly responsible for posting the sign.

Congratulating a suicide

Any constitutional lawyer will tell you that no right is absolute—not even the freedom of expression. In much of the common law world, courts have come to similar conclusions over the limitations of free speech. Libel, pornography, incitement of violence and hate speech are but a few areas where the freedom of speech is deemed in conflict with other rights and freedoms and therefore may be curtained.

In the United States, the First Amendment guaranteeing free speech is perhaps the most argued provision in the Bill of Rights. A series of high profile Supreme Court decisions have carved out seven permissible encroachments on expression: obscenity, child pornography, defamation, incitement to riot, fighting words, copyright infringement and false advertising.

In Hong Kong, freedom of expression is enshrined in Article 27 of the Basic Law. Limits on free speech by and large follow English case law and are for the most part consistent with the classic exceptions enumerated earlier.

When Chinese University management slammed the pro-independence banners as “illegal,” they were alluding to Article 1 of the Basic Law which stipulates that “[t]he Hong Kong Special Administrative Region is an inalienable part of the People’s Republic of China.” The banners supporting Hong Kong independence, according to the university, contravene Article 1 and are therefore unconstitutional.

But that’s where the school authorities got confused and hopelessly wrong. Even though the act of secession itself is unlawful, supporting it isn’t—at least not until an anti-subversion law is enacted. Every day, citizens, lawmakers and government officials debate matters that are potentially or in fact unconstitutional. There is no common law prohibition on the “discussion of illegal acts.”

One of the most contentious rights

For instance, the government’s joint checkpoint proposal at the West Kowloon railway terminal is in clear violation of several provisions of the Basic Law. At least two judicial reviews have been filed to challenge its lawfulness in local courts. But that hasn’t stopped Carrie Lam and her cabinet from hard-selling the plan to the public like used car salesmen. Following Chinese University’s argument, then every television commercial and MTR poster promoting the co-location proposal ought to be taken down for illegality.

If the West Kowloon comparison is too obscure, there are plenty of other examples to look to. Activists fighting for marriage equality or access to medical marijuana should be free to wave rainbow flags or hand out leaflets explaining the health benefits of cannabis. Neither same-sex marriage nor marijuana use is legally permissible, but that’s precisely the point of free speech: to debate whether they should be.

Can you imagine the upheaval if university management starts removing rainbow flags from campus for “promoting the currently unlawful act of same-sex marriage”? By the same token, any reasonable person should be equally outraged by Chinese University’s misguided—if not altogether anti-intellectual—decision to take down the students’ pro-independence banners, regardless of one’s personal views on that issue. For a respected institution that has long been regarded as a vanguard of the city’s liberal ideals, the latest turn of event is a shocking disappointment.

What about President Cheung’s righteous indignation toward the distasteful sign at Education University?

Without a doubt, the sign making light of a suicide was mean-spirited, juvenile and cruel. But free speech isn’t about being nice or mature or kind—it is about the freedom to be all of those things as long as we don’t violate someone else’s rights. The sign fell far short of a “hate speech”, which refers to offensive words targeting a person or group on the basis of a collective attribute such as race, religion, ethnic origin or sexual orientation. Even though the behavior in question was hateful, it is nonetheless legitimate free speech.

Cheung’s high-profile condemnation of a single insensitive sign is nothing short of an overreaction. It also begs the question as to whether he would have made so much fuss had the sign not been directed at a senior government official. For if a university president were to apologize for every silly post on an open forum, or if he has to convene a disciplinary committee to punish every student for an unpleasant comment, he would be a very busy man.

Sure enough, the day after the incident, another pain-in-the-neck put up a sign slighting the death of Chinese dissident Liu Xiaobo (劉曉波) in retaliation of the anti-Choi post. Will Cheung call another press conference and put on the same indignant face? If he doesn’t, why not?

New sign that mocks the old one

There is no denying that some speech is more tasteful than others—the one that appeared in Education University clearly wasn’t. Many also believe independence to be a pipe dream and a path to disaster. To the average Hong Konger, both acts by university students this week were schoolboy antics that shouldn’t be encouraged. But while they may be bad ideas, they are constitutionally-protected bad ideas.
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This article was published on Hong Kong Free Press under the title "An all-out war of words: Where does free speech start and end in Hong Kong?"

As published on Hong Kong Free Press

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