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Watchdog Or Demagogue? the Media in the Chinese Legal System

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Watchdog Or Demagogue? the Media in the Chinese Legal System Columbia Law School Scholarship Archive Faculty Scholarship Faculty Publications 2005 Watchdog or Demagogue? The Media in the Chinese Legal System Benjamin L. Liebman Columbia Law School, [email protected] Follow this and additional works at: https://scholarship.law.columbia.edu/faculty_scholarship Part of the Law and Politics Commons Recommended Citation Benjamin L. Liebman, Watchdog or Demagogue? The Media in the Chinese Legal System, 105 COLUM. L. REV. 1 (2005). Available at: https://scholarship.law.columbia.edu/faculty_scholarship/113 This Article is brought to you for free and open access by the Faculty Publications at Scholarship Archive. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Scholarship Archive. For more information, please contact [email protected]. COLUMBIA LAW REVIEW VOL. 105 JANUARY 2005 NO. 1 ARTICLE WATCHDOG OR DEMAGOGUE? THE MEDIA IN THE CHINESE LEGAL SYSTEM Benjamin L. Liebman* Over the past decade, the Chinese media have emerged as among the most influential actors in the Chinese legal system. As media commercializa- tion and increased editorialdiscretion have combined with growing attention to social and legal problems, the media have gained incentives to expand their traditional mouthpiece roles in new directions. As a result, the media have emerged as one of the most effective and important avenues of citizen redress. Their role in the legal system, however, has also brought them in- creasingly into conflict with China's courts. This Article examines the implications of the media's roles in the Chi- nese legal system for China's legal development. It shows how media commer- cialization has resulted in incentives for the media to expand the scope of * Associate Professor of Law and Director, Center for Chinese Legal Studies, Columbia Law School. I am grateful to the numerous people who have provided me with assistance and comments, including participants in the Columbia Law School Faculty Retreat, the Yale Law School China Law Colloquium, the Advanced Research into Chinese Law Seminar at Columbia Law School, and symposia held at the Institute of Law of the Chinese Academy of Social Sciences and the Judicial Reform Center of Beijing University Law School. Special thanks for comments and assistance to Bill Alford, Vince Blasi, Spencer Barrowes, Tom Bernstein, Helen Causton, Chen Rong, Chen Xi, Chen Xixin, Chen Xugang, Lori Damrosch, Meg Davis, Ashley Esarey, Erika Evasdottir, Eric Fronman, Paul Gewirtz, Han Li, Keith Hand, Gong Hao, He Weifang, Jonathan Hecht, Perry Keller, Li Yayun, Li Zhong, Liao Fan, Terry Liu, Stanley Lubman, Curtis Milhaupt, Henry Monaghan, Gerry Neuman, Katharina Pistor, Teemu Ruskola, Jim Seymour, Shen Kui, Shen Minrong, Peter Strauss, Susan Sturm, Frank Upham, Wei Yongzheng, Kathy Wilhelm, John Witt, Andrea Worden, Xu Xun, Zhang Xu, Zhang Yi, and to the many people in China who shared their time with me as I conducted research for this Article. I am also deeply grateful toJustin Davids, Dave Ziff, and the staff of the Columbia Law Review for their tireless work on this Article. I am responsible for all errors and omissions. The relevant portions of Chinese-language sources were translated into English for cite checking by the staff of the Columbia Law Review. When a citation indicates that a Chinese-language source is on file with the Columbia Law Review, the relevant parts of both the original source and the translation are on file. Those sources without appropriate translations were substantively checked by a Chinese-reading staff member. Some internet sources are no longer available online, so their weblinks have not been included in the citation. Due to the confidential nature of the interviews conducted in connection with this Article, the Columbia Law Review does not have copies of the interview transcripts on file. COLUMBIA LAW REVIEW [Vol. 105:1 critical reporting, to challenge propagandadepartment content regulations, and to influence court decisionmaking. This Article details four distinct mechanisms by which the media influence China's courts, demonstrating that the media's effectiveness and influence stem from a combination of their continued position as an arm of the Party-state and their ability to reflect and create public opinion. Media commercialization may be reinforcing traditional norms of Party-state interference in the courts, while at the same time media scrutiny increasingly highlights problems in the Chinese justice system. Despite signif- icant reforms and increasing caseloads, the authority of China's courts re- mains limited. Yet the media's ability to enjoy significant autonomy within the confines of Party supervision also suggests that a similarmodel of auton- omy may be possible, and is perhaps already emerging, for China's courts. INTRODUCTION ...................................................... 3 I. HISTORICAL AND REGULATORY BACKGROUND: COMMERCIALIZING MOUTHPIECES .......................... 14 A. H istorical Roles ......................................... 14 B. The Continuing Roles of the Party Press .............. 17 1. Public Reporting ................................. 18 2. Internal Reports ................................. 21 C. Controlled Commercialization ........................ 23 D. Investigative Reporting and "Public Opinion Supervision" . ........................................ 29 E. Content Regulation; Controlling the Boundaries ...... 41 1. Formal Laws and Regulations .................... 42 2. Propaganda Department Instructions ............. 43 3. Inform al Norm s .................................. 46 4. Local Regulations and Impediments: Defamation Litigation ........................................ 50 F. Challenging Boundaries; Incentives and the Internet. 56 1. Financial Incentives .............................. 56 2. The Internet: Technological Challenge? ......... 59 II. MEDIA AND DISPUTE RESOLUTION ............................ 65 A. Public Coverage of Cases ............................. 69 1. Executed by the Media? The ZhangJinzhu Phenom enon .................................... 69 2. Black Whistles: Media Impact on Decisions to Prosecute ........................................ 73 3. Who Has the Right to "Beat a Rat"? .............. 80 4. Sun Zhigang: Popular Opinion and the Internet . 82 5. Stirring Justice ................................... 91 B. Internal Publications ................................. 97 C. Formal Referral Mechanisms: Mass Work Departm ents ......................................... 102 D. Informal Influence: Journalists as Problem Solvers ... 110 E. Court Management of the Media ..................... 113 2005] WATCHDOG OR DEMAGOGUE? III. INFLUENCE, INSTITUTIONAL COMPETITION, AND IMPACT ON COURT EVOLUTION ......................................... 118 A. Competition Among Institutions: Supervising the Party and the Public ....................................... 122 1. Centralized Competition ......................... 123 2. Local-Center Dynamics ........................... 126 B. Media Coverage and Court Evolution ................ 127 1. Competing to Resolve Disputes ................... 128 2. Popularizing Law or Popular Justice? ............. 130 3. Expanding Relevance and Expanding Authority?.. 132 4. Reinforced Interference .......................... 136 C. Legislating Against Transparency? Restricting Media C overage ............................................ 137 D. Supervised Independence ............................ 148 CONCLUSION ....................................................... 154 INTRODUCTION "Ten years of complaints are not as good as one wave of interviews." -Popular saying in China' "Over the past year ... we have given special emphasis to working closely and communicating with the news media, doing an enormous amount of work to control and reduce negative exposes that harm the image of courts and judges. Looking at the entire province's courts over the past year, there have basically not appeared any major negative ex- poses, and the number of negative articles has clearly decreased ...." -Propaganda and Education Department, Shaanxi Province High People's Court, November 20022 Sui Xiang had China's most powerful legal authority on her side. In 1988, when she was seven, Sui lost both arms when she came into contact with an electric transformer that the local electric bureau had installed on her family's vegetable patch in violation of national safety standards. Nine years of complaints and lawsuits failed to bring compensation. Then, on March 25, 1998, fiaodian Fangtan, or Focus, a nightly news and commentary program on China Central Television ("CCTV"), aired a re- port on her case titled, "A Case That Cannot Be Understood After Ten 1. Zhang Ying, Yulun Jiandu Yu Xinwen Gongzuozhe De Falti Yishi [Popular Opinion Supervision and the Legal Consciousness of News Workers], 2001 Xinwen Zhanxian [News Frontline] No. 10, available at http://www.people.com.cn/GB/paper79/4505/ 505080.html (on file with the Columbia Law Review). 2. Shaanxi Sheng Gaoji Renmin Fayuan [Shaanxi Province High People's Court], Wei "Gongzheng Yu Xiaolti" Yinhang Gaoge-2002 Nian Quansheng Fayuan Sixiang Xuanchuan Gongzuo Quede Xin De Chengji [Singing Out Lustily for "Fairness and Efficiency"-The Entire Province's Courts Achieve New Accomplishments in Thought Propaganda Work in 2002] (Nov. 10, 2002) (on file with the Columbia Law Review). COLUMBIA LAW REVIEW [Vol. 105:1 Years."'3 The program asked how such a straightforward case could take
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