January 2, 2005
Chinese TV Director Sued by Falun Gong Claims Free Speech Protection in the U.S.
By ADAM LIPTAK
hao Zhizhen, the director of a local television station in Wuhan, China, was in New Haven last summer, spending time with his daughter after seeing her graduate from Yale. Followers of Falun Gong, a spiritual practice banned in China, found him there and served him with a federal lawsuit. His station's programs, they said, had incited violence against them in China. Suits against Chinese officials by the movement's adherents in courts around the world are not unusual, and the officials typically ignore them.
But Mr. Zhao, who says the suit challenges his honor as an independent and objective journalist, has taken a different approach. In a filing on Thursday in the Federal District Court in New Haven, he said American free speech principles should protect him.
The case tests the bounds of the Alien Tort Statute, a 215-year-old law that allows foreigners to sue in federal court over serious human rights violations anywhere in the world. In June, the United States Supreme Court, in a separate case, upheld the law but said lower courts should apply it cautiously.
The case against Mr. Zhao also pits a growing international hostility to statements disparaging ethnic and religious groups against the American singular tolerance for such speech. The plaintiffs in the case, a class action, said in their court papers that the broadcasts Mr. Zhao produced and supervised were propaganda "reminiscent of Nazi stereotypes of Jews and Ku Klux Klan stereotypes of African Americans."
Mr. Zhao, who has returned to China, responded that his programs were little different from "60 Minutes," "20/20" and "Nova." They cast, he said in a sworn statement, a skeptical eye on the unusual claims made for the movement's practices.
Falun Gong is a form of qigong, an ancient Chinese practice of yogalike breathing exercises. "It is seen by supporters as a spiritual group dedicated to inner serenity," Mr. Zhao's court papers say, "and by critics as a mind-control cult led by Li Hongzhi, a charlatan who claims supernatural powers." The Chinese government outlawed Falun Gong in 1999. Members of the movement say they have been sent to prisons, labor camps and mental hospitals and that they have been tortured with electric shocks and nerve-damaging drugs. Independent human rights groups have confirmed many of the charges. The State Department, too, most recently in a September report on religious freedom in China, said that "there have been credible reports of deaths due to torture and abuse."
Bruce S. Rosen, Mr. Zhao's lawyer, said his client was not aware of such abuses. "If someone has been tortured or mistreated in the way it's described in the complaint," Mr. Rosen said, referring to the lawsuit, "it's not something he would support."
The central question in the suit, Mr. Rosen said, is whether an American court should entertain an objection to Chinese journalism. "The plaintiffs are attempting to use a U.S. law to punish him for his speech," Mr. Rosen said. Terri E. Marsh, a lawyer representing the plaintiffs in the Connecticut suit, disagreed. "It's not a free speech case," she said. "It's a torture case."
At least a half-dozen suits by followers of Falun Gong have been filed against Chinese officials in the United States. The suits are the source of considerable diplomatic friction, and the State Department has filed papers in several cases urging courts not to hear them. Mr. Zhao is apparently proceeding without official support. "I do not know of any connection between the Chinese government and this litigation," Mr. Rosen said.
It is difficult to reconcile Mr. Zhao's description of his work with the plaintiffs' version. "I have tremendous autonomy," he told the court in his statement, "just as Western journalists do." "This type of reporting," he added, "is no different than reports by United States news outlets reporting on various cults, from David Koresh to Sun Myung Moon to Scientology."
Mr. Zhao provided the court with an English translation of the transcript of one program cited by the plaintiffs, a profile of Mr. Li that was broadcast in 1999. It was, according to the transcript, largely a series of interviews with people who had become disillusioned with Falun Gong. It was framed by not especially fiery socialist rhetoric, and it contained no explicit calls to violence.
The plaintiffs say other programs were uglier. "The tactics deployed in these media reports and TV shows are virtually identical to those used in Rwanda during the genocide of the Tutsi by the Hutu," they said in their papers. A year ago, the international war crimes tribunal in Tanzania convicted three men for using a radio station and newspaper to incite genocide in Rwanda. The tribunal suggested that American law, which it called "the most speech protective" in the world, might have called for a different result.
American tolerance for hate speech is indeed extreme by international standards. In 1969, the United States Supreme Court said a speech by a Ku Klux Klan leader that urged followers to "send the Jews back to Israel" and to "bury" blacks was lawful. The only exception under the First Amendment, the court said, was for advocacy "directed to inciting or producing imminent lawless action."
Morton Sklar, the executive director of World Organization for Human Rights USA, a nongovernmental organization that works to stop torture, said the Connecticut court should rule against Mr. Zhao under principles of international law. "Certain kinds of speech do not qualify for protection as free speech," Mr. Sklar said. "When someone promotes the use of torture and promotes genocide or promotes the extermination of a group for its spiritual beliefs, that line has been crossed."
Peter J. Spiro, a specialist in international law at the University of Georgia School of Law in Athens, said the case against Mr. Zhao "is not completely without foundation" in light of the Rwanda judgment. "But that case," he said, "involved broadcasters who in effect were directing traffic for the Rwanda massacres - telling persecutors where to find their victims and the like. In that case direct complicity with the genocidal activity was clear. Not so in the case against Zhao."