Both the freedom of speech and social development are very important to the civilization of human society. But how to gain correct knowledge and properly solve the relations between the two has always been a puzzle. Some people hold that it is unavoidable that developing countries will develop at the cost of the freedom of speech of their people, while others argue that the freedom of speech is an absolute right and society should pay any price to safeguard such a right, even allowing pornographic and violent works to flood into society and affect the healthy growth of teenagers. These opinions are not merely a kind of understanding, for they are reflected in the design and operation of legislation, administration and judicial judgments. The problems will be more evident especially when there are conflicts related to interests and rights. Therefore, I' d like to present my understanding on freedom of speech and social development and welcome valuable remarks from other scholars.

I

Freedom of speech refers to the right of people to receive and transmit all kinds of information and thoughts either orally, or in written statement and other means. The freedom includes three aspects. First is the freedom of seeking and receiving information. Human beings need knowledge of the subjective and objective worlds in order to survive and develop, as well as in forming a society. Consequently, they will seek and accept the experience of their ancestors and others, and enjoy the freedom of looking for and receiving information. Without this, survival and development will be impossible. Second is the freedom of thinking and holding opinions. The information sought and received becomes a resource for the development of thoughts, advocacy and convictions. The latter should be exempt from any influence or constraint, otherwise, the development will come to a halt and the survival of human beings will be threatened. Third is the freedom of transmitting all kinds of information, thoughts and advocacy in various ways. This is the fundamental condition for human beings to transform nature and promote social progress and realize cooperation and mutual help. Freedom of speech is an important means for people to understand, receive, develop and transmit knowledge, experience and truth. To guarantee this freedom shows care and respect for citizens. This and other kinds of freedom and rights are the foundation of modem market economy, democratic politics and modem countries.

We can find more reliable evidences and grounds in history that demonstrate the close relationship between the freedom of speech and social development.

The development of social productivity during the Spring and Autumn and Warring States Periods (770 BC - 221 BC) helped open up people's minds. The "contention of a hundred schools of thought" demonstrated the freedom of speech enjoyed by ancient Chinese. A product of the social changes of that time, it promoted the transition from slavery to a feudal system and aid the foundation for the feudal dynastic reign of more than 2,000 years. In the 19th century, the feudal autocratic system became even more decadent. But in traditional China, any criticism or censure of the system would be considered as "showing no respect to one's superior" and "going against the emperor', which were unforgivable by general amnesty. After 1840, under the invasion of Western powers and at a critical time for the nation, the feudal emperors still stuck to the belief that the systems set by their ancestors could not be changed, and tried to confine continuously the reform thought and advocacy of the people. Over the past 100 years, each move to popularize a constitutional monarchy, Western style bourgeois democracy and Marxist people's democracy paid a heavy price in blood. Lack of freedom of speech could be said to be one cause for China's slow social development. Through arduous struggle, advanced thought and ideas were finally popularized and spread, and became a huge ideological and material force to the people. They provided huge motive power for the Chinese to overthrow the feudal system, achieve victory of democratic revolution and finally found New China.

Since 1978, outstanding achievements have been made in China's economic construction and considerable social progress has been accomplished. These cannot be separated from the principle adhered to by China of emancipating the mind and seeking truth from facts. Emancipating the mind makes people break through the theoretical taboos and makes them able to do something that they couldn't expect to do and say something that they couldn't expect to say in the past. Free discussion under the guidance of "letting a hundred flowers blossom and a hundred schools of thought contend" enables various understandings to comply with or approach the truth. Seeking truth from facts helps people get rid of book worship, understanding and thinking not from any ready-made definition or principle, but from facts and reality, and taking practice as the sole criterion for testing truth. The chief criterion for making the judgment of social progress should be "whether it promotes the growth of the production forces in a socialist society, increases the overall strength of the socialist state and raises living standards". This has further encouraged the Chinese to emancipate the mind with freedom of speech and will continuously promote the social development in China under new historical conditions.

There are many examples in Western history that manifest the close relationship between the freedom of speech and social development. It is obvious that if the theocracy and legal system that burnt heretics like Giordano Bruno to death still existed, feats such as stepping on the moon and exploring space would only remain in human imagination.

The significance of freedom of speech to social progress makes it not only a conviction, but also something confirmed and protected by means of law. It is not only part of domestic law in many countries, but also in international declarations and international treaties.

II

The freedom of speech is important to social development, but it cannot be inferred that it is absolute and exempt from any limit. Freedom cannot mean the right to do anything that is not allowed by law. If he does anything forbidden by the law, he will never enjoy the freedom any more. Therefore, either international covenants or constitutions of many countries make corresponding limits to the exercise of such a freedom while declaring that freedom of speech is a basic right of human beings guaranteed by law.

Article 19 of the International Covenant on Civil and Political Rights (ICCPR) stipulates that the exercise of freedom of speech has special obligations and responsibilities. It should be subject to certain limits that should be stipulated in law and must be conditioned by the following: (a) respecting the rights and reputation of others; and (b) guaranteeing the state security or public order, public health or morality. Related limits can be found in other international or regional covenants on human rights. According to a survey by two Dutch constitutional researchers, of the 142 constitutions in the world, 124 stipulate the freedom of speech. While confirming the freedom of speech to be a basic right of human beings, the constitutions all make specific limits to the exercise of such a right in "provided that" clauses. The "provided that" clauses are often seen in the constitutions of many states in the United States. For instance, the constitution of New York State says that citizens enjoy the freedom of writing, telling or publishing their opinions on any problem, but they should hear the responsibilities of abusing the right. The constitution of Illinois State has similar stipulations. The Human Rights Declaration, the introduction of French constitution, says that the freedom to express the thought and opinions is one of the most valuable rights of human beings and, therefore, every citizen has the freedom of speech ,writing and publishing, but should hear the responsibilities of abusing the freedom under conditions stipulated by law.

From all these constitutions and laws, it can he inferred that the limits on the freedom of speech is as common as the confirmation of it. However, it seems to me that the latter is of more importance, just like the relations between obligations and rights. The limits of speech freedom is to coordinate well the right and obligation of speech.

Ⅲ

Concerning the scope of limits on this freedom, there are certain differences in the constitutions and laws of different countries, but the differences vary mainly in the judicial and administrative implementation of said stipulations. Besides the possible gap between the written stipulations by law and the actual judgment and implementation, the differences in the limits of freedom of speech among various countries have more complicated reasons such as: (1) different historical and cultural background; (2) different religions and national customs; (3) different economic, cultural and scientific and technological development levels; (4) different domestic situations of public order; and (5) different international situations faced by different countries.

The objective world is very complicated with constant changes, and doesn’t conform to the logical principles of theorists. The politicians and judges that hear responsibility to voters and the state have to consider practical, specific conditions. They should try to protect the freedom of speech of citizens and safeguard the stability of social order and development of the society as well, and try to make sure the exercise of such freedom promotes social stability. To avoid disorder caused by the neglect of either of the two elements, they should find a balance, and this is seen in the constitutions and laws of many countries.

When we visited Norway in the winter of 1997, we were told by Itarstein Smith, president of the Supreme Court of Norway, that they were hearing a case regarding the Alliance Party of Norwegian Whites, which had put forth a program opposing inter-racial (white-black) marriage in the name of upholding the original ethnic characteristics of Norwegians. The first trial court found the party leader guilty and imposed a jail term and fine. He lodged an appeal that the judgment violated the stipulations on the freedom of speech of the Norwegian Constitution and the European Convention on Human Rights. Considering the case involving a significant principle, the Supreme Court made an exception of ordering a retrial by the middle court and heard the case itself with all of member judges present. The final judgment held that the argument seeking help from freedom of speech for the party in this case was untenable. To uphold the justice of the law, the court stood on the side of opposing racial discrimination rather than the alleged freedom of speech. It rejected the appeal and preserved the first court judgment. The verdict verified that stipulations on freedom of speech in many constitutions and international covenants should never he abused.

Taking into consideration their own conditions, many countries have made some reservations or statements on the ICCPR Article 19 stipulations while signing on the document. For example, Australia, Belgium, France and Germany all stated that they would abide by the ICCPR Article 19 under the condition that the case complied with the Articles 10, 11 and 16 of the European Convention on the Protection of Human Bights and Freedom. Australia, Ireland, Luxembourg and the Netherlands made reservations on the stipulation and license issuance of radio and TV broadcasting; and Luxembourg and the Netherlands mentioned in the reservation the system of license issuance to film companies and cinemas.

IV

As I stated in the beginning of this article, the Chinese people had long fought for freedom of speech in history and paid a heavy cost. After New China was founded in 1949, Article 5 of the Common Prograrn of the Chinese People' 5 Political Consultative Conference said that citizens of the People's Republic of China enjoyed freedom of thinking, of speech, of the press, of assembly, of association, of correspondence, of residence, of migration, of religion, of procession and of demonstration. The prograin served as the provisional constitution before the 1954 constitution was made. Despite several amendments of the Constitution since 1954, the confirmation of the freedom of speech has never been changed. The present Constitution stipulates, "Citizens of the People's Republic of China enjoy freedom of speech, of the press, of assembly, of association, of procession and of demonstration It also stipulates that "citizens of the People's Republic of China have the freedom to engage in scientific research, literary and artistic creation and other cultural pursuits". Regarding the practical situation in China, the Constitution makes special statements that "citizens of the People's Republic of China have the right to criticize and make suggestions regarding any state organ or functionary. Citizens have the right to make to relevant state organs complaints or charges against, or exposures of, any state organ or functionary for violation of the law or dereliction of duty". like many other countries, the Chinese Constitution has set three principles for the proper exercise of freedom of speech. Article 51 stipulates that "citizens of the People' 5 Republic of China, in exercising their freedoms and rights, may not infringe upon the interests of the state, society or of the collective, or upon the lawful freedoms and rights of other citizens". It requires Chinese citizens to show respect for the rights and freedoms of other citizens, respect the reputation, personality and privacy of other citizens, observe public order, keep state secrets, safeguard the security of the motherland, and respect social ethics. To guarantee the implementation of the Constitution, the General Principles of the Civil Law of the People's Republic of China, the Law on the Protection of Minors and the Law on Keeping State Secrets have specific regulations. The Criminal Law and the Regulations on Public Order and Punishment stipulate punishments for violators.

Despite the said legal protection of the freedom of speech, the influence of feudal autocracy ruling for centuries in China still has its affect. The shadow of the patriarchal system hasn't yet faded totally. In history, various crimes such as "having no respect for one's superior", "going against the emperor , taboo against using the name of the ancestor in any way", and "having no filial respect for elders" and all kinds of feudal privileges still have their baneful influence decades after the feudal dynasty was overthrown. Modem Chinese have hard lessons, too. During the "cultural revolution" , constitutional principles were destroyed and the freedom of speech no longer respected. Two extremes were followed: either too strict-" what leaders say is taken as the law and anyone who disagrees is called a law-breaker", or libeling assaulting each other, violating the privacy and humiliating others. From verbal argument to using sticks and even aims, there was a nationwide "civil war". Only after restoration of order, guided by the correct principle in 1978, was the "Cultural Revolution" stopped resolutely by the Communist Party of China and the Constitution and legal order restored.

Just like the fact that the mental emancipation in the late 1970s and early 1980s had promoted the reform and opening, the social progress brought about has promoted the realization of freedom of speech. On the one hand, the economic reform since 1978 has given all citizens a wider range of freedom. They tend to express their demands on their interests and their own wishes more sincerely than before. On the other hand, along with the development of society, economy, science and technology, the mass media have witnessed rapid development. They provide unprecedented conditions for the Chinese citizens to enjoy freedom of speech. The National People's Congress and its Standing Committee, and local people's congresses and their standing committees, have made laws and regulations concerning news reporting, publication, patent, trade mark and intellectual property rights.

The Chinese people are building socialist democratic politics and are determined to turn the country into a socialist country ruled by law. Real democratic elections, decision-making, management and supervision will be the targets in state organs. There is no ready-made model on the road ahead. To realize development in economy, science and technology, education and politics , we must rely on the wisdom and initiatives of the masses, and this should be based on the various rights and freedoms including the freedom of speech of the people. As President Jiang Zemin once pointed out: "Efforts should be made to ensure that the people enjoy extensive rights and freedom endowed by law, and human rights respected and guaranteed".

China, at a primitive stage of socialism, is completing its legal system. We should further complete laws concerning the protection of freedom of speech according to the Constitution, Such as laws on news reporting, publications, broadcasting, film and TV, performances and information transmission. Thus, the legal rights and obligations between the staff in these fields and the mass listeners, audience and readers will be made clear and the resolution of disputes will have legal basis. The entire civil and political rights of citizens including the freedom of speech will be legalized and systematized. Once they are infringed, in-time rescue can be appealed. Although China's law on the protection of speech freedom needs completion, we can not deny the efforts made over the past two decades to protect the freedom and the historical progress achieved. It can be well said that the Chinese people have never enjoyed more freedom of speech in history than today. It can be expected that full freedom of speech will further reflect the views of the Chinese on democracy and human rights and will further promote the development of socialist market economy and the social progress of China. Along with social development, scientific and technological advancement and cultural enhancement, the Chinese will enjoy more freedom of speech in the future.

By: Liu Hainian, Director of Law Research Institute of China Academy of Social Sciences

This thesis was written in 1998