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一篇旧作的英文版

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2006年,应《财经》之邀,我与季卫东教授合作,为其“法眼”专栏写稿。其中一篇为“网络社会的言论自由”,获香港“中国传媒研究计划”网站关注,将其译为英文予以介绍,并加上按语。以下内容转自该网站,算是对当年笔耕的一点纪念。


Caijing Magazine: “Free Speech in an Internet Society”

More than a month after police officials in the municipality of Chongqing announced that all personal web users would have to register with authorities by the end of October this year, nationwide debate over the local regulations continues on the Internet and in mainstream media. A recent editorial in Caijing magazine (August 7, 2006) spoke about the Internet as an important tool for citizen participation in debates over public policy, and called apathetic citizens the “greatest enemies of freedom”. The editorial, written by an associate professor at China University for Political Science and Law, makes a rare use of the word “free speech” (言论自由) in its headline. A Chinese database search of all articles from more than 250 newspapers and magazines in the mainland since January 1, 2006, showed just nine articles using “free speech” in the headline — only three of these dealt with issues in China.

The Caijing editorial follows:

Free Speech in an Internet Society

by Fan Libo (范立波)

Since a Chongqing police regulation ordering individuals to register before they could go online went into effect there has been a fierce response in the media and on the Internet. Chongqing police officials stepped forward to explain; someone also wrote an article saying this response arose from a misunderstanding, that regulations of this kind have been around for a long time already and things have in fact been done this way all along, so there was no reason to be overly surprised. The debate seems now to have simmered down. But many key and pressing questions, such as free speech in the Internet age, demand greater reflection.

No one today denies that free speech is an important value. But where is its value most clearly shown? Indian economist Amartya Sen [autobiography here] sums it up wonderfully:

First of all, a citizen expressing his/her own views on an issue of public affairs that interests them is one of the happiest aspects of human life. Free speech is for the citizen an important value in and of itself.

Secondly, free speech can prompt the government to face its citizens and be responsible to them, helping prevent economic and social crises – because free speech not only promotes the spread of information but also spurs the government to responsible decision making. Sen’s research has shown that famine is due not to natural causes but rather to institutional causes. In countries with a definite degree of speech freedom even large-scale natural disasters have not resulted in severe famine.

Lastly, free speech is constructive, because participation in public affairs is a learning process. Many important social and political problems face deep and careful consideration only through widespread discussion, and it is only in this way that society can reach a common understanding [about them].

Unlike Sen, some scholars have criticized Western-style speech freedoms. When French sociologist Pierre Bourdieu talks about forms of censorship, he raises an issue people often overlook, media silence. If a journalist is uninterested, he says, then information will not be disseminated, and so the journalist becomes an impediment or filtration system to information.

A journalist’s preferences, moroever, are to a definite degree determined by the power of the capital supporting them. These preferences generally coalesce into a practice of interpreting or even making news for the benefit of those capital interests. News becomes a puzzle pieced together with shards of social fact selected by the journalist, full of what W. Lance Bennett has called subjective preference (主观偏好) and value pitfalls (价值陷阱). So-called free speech becomes merely a “political fantasy”, fine evening wear with which capital may dress itself up.

The appearance of the Internet deals with the inadequacies of traditional media. One of the greatest strengths of the Internet is that its entry costs are extremely low, and it renders the dissemination and accessing of information extremely convenient. In the Internet world individuals can decide for themselves what kind of information they make contact with, and using various site-building tools like blogs they can launch “my daily” and “my editorial”, expressing their own points of view. Using interactive platforms like bulletin boards they can converse with others. Society no longer relies on these middlemen we can journalists for the dissemination of information. Every person is both a reader and a journalist. There is no need to go through the silent censorship of reporters and editors at traditional media. We can directly submit our information to the online world.

As a direct result of the disappearance of the middleman information is much more diverse. If we say that diversity of information has always been the objective of free speech, then Internet technology has, at least in theory, brought us much closer to that goal. This is how the web promotes free speech. The emergence of the Internet is laying down the technical conditions necessary to realize the various values of free speech Sen outlined.

For societies in transition the various values of free speech Sen proposes should without a doubt be given attention, and everything possible should be done to ensure the Internet is used to realize these values. China’s social system grows more complicated by the day, and social structures are undergoing a process of severe adjustment. Many decisions have broad consequences and will determine and shape our future world – this means we must have information diversity and public deliberation (公共审议). Due to an insufficient system of checks and balances officials [in China] lack a sense of responsibility in policy-making and willfully distort or suppress speech for the benefit of themselves or their groups of self-interest. A lack of responsibility on the part of officials, combined with a loss of truth in information, has the potential to spawn social disaster. The episode of SARS a few years ago is one example.

The Internet obviates the need for a middleman, and its anonymous character encourages the continuous flow of various types of information onto the web. In cases where there are severe controls, a personal information dissemination system like the Internet can resolve the shortage of and twisting of information that can come with official suppression and media self-censorship. This has major implications for public debate. The interactive nature of the Internet means it has the ability to focus attention around specific topics, mobilizing the participation of broad segments of the web population and having an important monitoring function on power.

More importantly, in a society in transition, the Internet can serve to create a common understanding on key social and political questions such as the direction of society and what are priority objectives. This too requires widespread public debate. Public debate can lessen and even avoid strategic error, and discussion can also be used to adjust or change the value judgments of citizens, bringing about a coalescing of the common understandings needed for reform. The Internet provides adequate technical support for public debate.

For a government in transition free speech has a further important function, namely that it legitimizes national power. With society going through major changes in recent years, people have already accepted the fact that it is no longer possible for power to be legitimized through the charisma (个人魅力) and tradition about which Weber spoke, or by mysterious authority. We can only appeal for popular approval and constant monitoring by the people. This kind of monitoring can happen only if there is complete speech freedom. Doing the utmost to make information public (尽可能公开信息) and letting the people freely obtain information and be free to make their own judgments about it is an important path to making the people trust and accept the legality of their government.

Presupposing the absence of democratic practices, a government should recognize these changes in public feeling and, by guaranteeing speech freedoms, earn the confidence of the people. [The government] can not appeal [to the public] on the basis of its good intentions, or even look to policy achievements. Free speech is rooted in basic pessimism about the human character and mistrust of power, and this means the people must be free on principle to discuss all matters.

The rise of the Internet has provided the public with an opportunity to participate in public affairs and voice their own views. Participants find happiness in the process, and this participation lends important value, protection and support toward building a system of social cooperation. If free speech is limited this will without a doubt intrude on public happiness, making citizens apathetic and uninterested in public affairs. Apathetic citizens are the greatest enemies of freedom.

To be sure, free speech is not an absolute value, and the Internet itself has many problems that await resolution through the law. There are, for example, conflicts between web freedom and the rights to privacy and reputation, the competing needs to respect personal privacy while upholding the good of society and maintaining order on the Internet. Research from American legal scholar Cass R. Sunstein has suggested that the Internet might result in a loss of mutual communication through “personalization” and social dispersal – that it might mean people cease caring about the viewpoints of others and even admitting alternative viewpoints, which might eventually lead to a loss of interest and ability to generate common understanding through communication. [Sunstein writing on the Internet at the Boston Review]. The simple voting behavior now popular on the Internet may also risk making a mere show out of the thorough debate essential to [true] free speech, thereby losing sight of the debating function of the free speech system. Moreover, the emotional nature of web-based debate and the so-called “mass violence” (多数人的暴力) that has arisen from it is a problem also begging for solutions. These [issues] also require government involvement.

It should also be emphasized that free speech has inherent importance for systems of democratic constitutionalism (民主宪政制度). For this reason, limitations on free speech must come [only] with major justification. What those justifications are, moreover, must be a matter of public debate. Which is to say that in a democratic system, limitations on free speech must on principle by self-imposed [ie, a decision by the people, not the government]. Laws concerning Internet free speech must be made on the condition they provide certain guarantees of free speech. The emergence of the web has provided new space for free speech, and the people of the country, having gained much happiness from this unprecedented degree of free speech, treasure it. When making laws, organs of [state] power should recognize and respect [this freedom], and not impose limitations lightly. It would be best if any limitations on free speech were given over to public debate, awaiting common understanding and careful consideration. The measures taking effect in Chongqing have resulted in widespread misunderstanding and overexcitement largely because they were created in the absence of these conditions. As the limitations deal with the Internet, it is only natural that the response has been so fierce.

The writer is an assistant professor at the China University for Political Science and Law, and a research for this magazine.

[Posted by David Bandurski, August 16, 2006, 2:15pm]

http://cmp.hku.hk/2006/08/16/96/

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