No, the US Sedition Law is Not the Same as the Hong Kong Sedition Law
The Hong Kong sedition law used against Stand News journalists punishes a wide range of critical speech, while the US sedition law used against the Capitol attackers punishes violent insurrection
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In what has become an annual tradition, on December 29 Hong Kong authorities used the winter holiday “dead week” when the world was distracted to arrest seven people associated with local media outlet Stand News and charge two senior editors with “conspiring to publish seditious publications.” Two weeks later on the other side of the world, the US Government charged 11 members of the far right Oath Keepers militia with “seditious conspiracy” over their role in the attack on the US Capitol last January in an effort to stop Congress’ certification of Joe Biden’s election win.
The Hong Kong Government often defends its misconduct by referring to what it claims are similar laws and actions by foreign governments, from defending its repressive national security law by pointing to national security laws in the West (which, unsurprisingly, don’t actually prohibit making the government look bad or holding the wrong sort of flag) to defending its bizarre decision to kill thousands of hamsters and other small pets by pointing to Denmark’s mass killing of minks (which, it turned out, was illegal). While there have already been murmurs on social media defending the Stand News arrests by equating US and Hong Kong sedition charges, the Hong Kong Government has not done so yet. But judging from their usual practice, it’s a good bet they will do so when the opportunity arises.
Most rational people would correctly suspect that sedition in the US and other democracies is different from the speech crimes alleged against Stand News. The laws stem from similar historical roots, but that is where the similarities end. This article will explain why.
My intention is not to express support for sedition laws in the US and Europe, and there are good arguments for their repeal. But the problems with these laws are small compared to the Hong Kong sedition law’s far-reaching infringements on civil liberties.
The Law of Sedition in the US
While I’m simplifying some of the language here, the US statute on seditious conspiracy, 18 U.S.C. s. 2384, states that it is a crime for two or more people to take any one of the following actions:
To overthrow by force the US Government;
To levy war against the US Government;
To oppose by force the authority of the US Government;
To prevent, hinder or delay by force the execution of any US law; or
To seize US property by force.
One can quickly see the theme here: In order to convict a defendant, the prosecution must prove beyond a reasonable doubt that the accused actually conspired to use force in some way. There is no prohibition on criticism of the government, causing discontent amongst the public, or painting anyone or anything in a bad light.
Additionally, the law is limited to conspiracies between two or more people. Conspiracy is a legal term with a specific definition. Most importantly, any conspiracy crime requires showing an overt act was taken in furtherance of the conspiracy. In the case of seditious conspiracy, it is not enough that someone spoke or wrote in favor of violence or even the overthrow of the government, which is usually protected speech under the US Constitution. They must, along with at least one more person, actually take an action furthering the goal of using force, such as planning a violent operation in detail, distributing weapons, or actually committing the violence.
US and European sedition laws both generally follow this pattern. They didn’t used to: sedition has a long history in the West of being used to repress public criticism and civil liberties (the Hong Kong sedition law was, after all, originally a British colonial law). But in the second half of the 20th Century, most Western countries turned strongly against seditious speech crimes. The first to do so was Canada in the famous 1950 R v. Boucher case, in which the Canadian Supreme Court ruled that sedition laws could not prohibit criticism of the government, and that sedition can only be used to restrict use of force. Today, Western sedition laws are almost unrecognizable when compared to their forebears.
The Law of Sedition in Hong Kong
Sedition under Hong Kong law is an entirely different beast. It’s not enough to simply say the statute is broader than sedition under US law, because there is so little overlap in focus that it is effectively a different crime entirely. Instead of a narrow prohibition on seeking to overthrow or cripple the government, the Hong Kong sedition law’s primary purpose is to prohibit political speech intended to paint the government in a bad light or cause public discontent. Unlike the US sedition law, the Hong Kong law requires no element of force or violence.
The statutory provisions in the Crimes Ordinance, s. 9-14, are long and complex, but to briefly summarize, a person commits the offence if they:
Act with seditious intention;
Utter any seditious words;
Print, publish, sell, display, or import any seditious publication; or
Possess any seditious publication.
So what does “seditious” mean in this context? The statute covers that in detail as well. A seditious intention is an intention:
To “bring into hatred or contempt or to excite disaffection against” the government, its leader, or the administration of justice;
To attempt to alter the law by unlawful means;
To “raise discontent or disaffection” or “promote feelings of ill-will and enmity” among the public;
To “incite persons to violence”; or
To encourage violation of the law.
There are several exceptions listed, plainly designed to protect much criticism of the government. These provisions say that it is not sedition to:
show that the government “has been misled or mistaken in any of [its] measures,”
“point out errors or defects in the government or constitution,”
attempt to legally change the law; or
Point out, with a view to their removal, any matters producing class-based ill will amongst the public.
Curiously, the exceptions would appear to create a situation where explicit political commentary, like that published by Stand News or, say, this newsletter, should be protected as non-seditious, while publications that are not overtly political, like the children’s book where police are represented as wolves that led to five arrests and sedition charges, would be closer to the line.
Exceptions aside, this law is incredibly broad compared to modern sedition laws in the US or other Western countries.
There are two key ways that this sedition law reaches well beyond the modern standard. First, all but one of the listed types of seditious intention are entirely focused on speech, and do not require any element of force at all. Second, no “overt act” of conspiracy between two people is required (though it is required under the current iteration of the Stand News charges, which allege a conspiracy, which may well be changed as the facts and charges are developed). It is enough to simply utter words critical of the government or that could make members of the public discontented, or even to simply possess someone else’s publication critical of the government.
US Capitol attackers are accused of planning violence
With respect to the US Capitol attackers, they are alleged to have violated the US law’s prohibition on conspiring to “prevent, hinder or delay by force the execution of any US law.” According to the US DOJ’s indictment press release, the allegations that warrant the seditious conspiracy charge include:
“Organizing into teams that were prepared and willing to use force and to transport firearms and ammunition into Washington, D.C.; recruiting members and affiliates to participate in the conspiracy; organizing trainings to teach and learn paramilitary combat tactics; bringing and contributing paramilitary gear, weapons and supplies – including knives, batons, camouflaged combat uniforms, tactical vests with plates, helmets, eye protection and radio equipment – to the Capitol grounds; breaching and attempting to take control of the Capitol grounds and building on Jan. 6, 2021, in an effort to prevent, hinder and delay the certification of the electoral college vote; using force against law enforcement officers while inside the Capitol on Jan. 6, 2021; continuing to plot, after Jan. 6, 2021, to oppose by force the lawful transfer of presidential power, and using websites, social media, text messaging and encrypted messaging applications to communicate with co-conspirators and others.”
Each of these allegations is carefully written to describe the two key elements, absent from the Hong sedition law, of a preparatory act beyond mere words (recruiting, organizing, training, transporting, bringing, contributing, etc.) and planned use of force (firearms and ammunition, paramilitary and combat tactics, paramilitary gear, breaching, attempting to take control, etc.). The alleged purpose of the overt acts was to “oppose by force the lawful transfer of presidential power,” and (most helpfully to the prosecution case) actually interfering with the certification of the election via the Capitol assault on January 6.
What we don’t see in any of these allegations is a defendant merely giving a speech or publishing a pamphlet. Nor do the allegations characterize as seditious any overt acts that do not ultimately seek to bring about violence. The seditious conspiracy is centered on particular acts taken by defendants in furtherance of their alleged goal to violently interfere with the functioning of the government—as it must be, since US sedition law would not apply to anything less.
The Stand News journalists, in contrast, are accused only of speech crimes
In Hong Kong, in contrast, prosecutors accused Stand News of conspiracy to publish seditious materials and referred to more than a dozen supposedly seditious articles. No one has publicly published a list of these articles, but National Security Police Senior Superintendent Steve Li, in a press conference, provided a summary of an eye-poppingly broad range of supposedly seditious acts by Stand News:
‘Senior Superintendent Steve Li Kwai-wah of the police's national security department said Stand News published seditious articles from July 2020 to November 2021, which caused hatred against the government and sparked dissatisfaction among citizens.
Reports said protesters “disappeared” or were sexually assaulted, which Li said were false reports.
“One says Chinese Communist Party abused its power by dictating the courts,” Li said, adding the saying made people distrust the judicial system.
Another story mentioned that police officers in green uniform pointed guns at the yellow helmets worn by protesters during confrontations at Chinese University in 2019.
“There was no mention of such thing during court hearings thus far,” he said.
Li said interviews and blogs carried by Stand News were seditious.
“An interviewee said 'only when having two countries you can have two systems... it is inciting secession,” he said. A blogger said he organized protests and drew up a list of recommendations for foreign sanctions.
“Stand News colluded with fugitives who called for foreign sanctions to incite hatred against the government, threatening national security,” Lee said.’
So, according to the Police and DOJ, it is “sedition” to:
Print false reports;
Criticize abuses of power by the government;
Report on events that have not been “mentioned…during court hearings”;
Report on comments by someone else—totally unconnected to the publisher—who might have violated national security.
Even in the context of the repressive British colonial law on which these allegations are supposed to be grounded, it’s difficult to overstate how aggressively they reach beyond the law’s text. For example, the sedition law expressly allows for criticism of the government’s positions or laws, yet “causing hatred against the government” via precisely these sorts of criticisms is central to the Government’s case. Further, while “printing false reports” may be grounds for a civil lawsuit for libel, it is not criminal sedition by any reading of the statute. And of course the vast majority of media articles publish facts not mentioned in court hearings, where the admission of evidence is subject to complex procedures and restrictions—to say the least, reporters are not ethically or legally bound to only report on matters that have been admitted into evidence by a court.
We have become quite used to accusations from the Hong Kong Police not based in any semblance of legal or factual reality. Still, a senior national security police superintendent making allegations that he must know will make him and his department look lawless is still (somehow) stunning to me. And for my fellow lawyers in the purportedly-independent Department of Justice to then take these allegations and assert them in court without reservation is, to put it mildly, not what lawyers are supposed to be doing.
But even setting aside the government’s overreach against Stand News, the Hong Kong sedition law would still be a very different law than the sedition laws of US and other Western countries, and in fact would be unconstitutional in most of them.
Common law jurisdictions must strike a balance between restrictions on speech and civil liberties, and there are certainly some cases where the restrictions prevail over the speech—yelling “fire” in a crowded theatre, for instance. But what is remarkable about Hong Kong’s treatment of the law in recent years is the near-complete disregard by police, DOJ, and the courts of Basic Law, international treaty, and bill of rights protections like free speech and press. A proper Hong Kong court decision assessing sedition laws or, say, the National Security Law should fully address the need to balance these competing interests, but instead the courts have tended to simply ignore the constitutional protections and apply the most restrictive interpretation to these repressive laws.
Sedition laws should probably be repealed not just in Hong Kong but across the world. There are other crimes available that are more closely related to the violence the government is justified in restricting—terrorism, insurrection, and even simple assault laws, to name a few. Yet, with all their flaws, US and European sedition laws cannot be said to infringe on the free speech and press that both the West and Hong Kong’s constitutional order claim to protect.
In Hong Kong, on the other hand, the sedition law is written to effectively prohibit a wide range of speech that has little or nothing to do with the violent overthrow of, or interference with, the government. It is a law written by a faraway colonial power for a colonial time, intended not to foster civil society and political debate but to shut it down entirely in the name of control.
Is this really the historical image that Beijing wants to emulate?
I believe you might have missed the important keywords like FALSELY and CREATING A PANIC as in "FALSELY shouting fire in a theatre and CREATING A PANIC" in Justice Holmes opinion, because it is not a crime to
1) shout fire in a theater when you genuinely believe there is a fire: you are not legally responsible to defer the warning to an opportune time.
2) FALSELY shout fire in a theater if the crowd didn't take your allegation of fire seriously
3) FALSELY shout fire in a theater if the crowd believe you but they didn't panic.
1) "falsely shouting fire in a theater" with "tricking a (a blind man) to walk off the cliff"
2) "blind man" with "crowd"
3) "creating a panic" with "plunging to death"
to build a more clear cut example:
If one tricked a blind man to walk off the cliff causing the blind man to plunge to his death, it's manslaughter which has nothing to do with speech in the context of "free speech": it's not expressing thoughts, beliefs/facts, opinion, or an art form (like comedy). It's just somebody committing common crimes through the use of communication. So far my understanding of "speech" in "free speech" are expressions of ideas (e.g. opinions), beliefs (e.g. unsubstantiated facts), observations (e.g. reporting) and thoughts (e.g. art).
We've been tricked into arguing what counts as "free speech" instead of what constitute as "speech" as in "freedom of speech"! The supreme court justices, which are indirectly political appointments with delayed effects, was abused to make laws that either create exceptions to free speech or redefining what counts as "freedom of speech". They did so with Trojan horse constructs like "protected class/category". When you start allowing a small group of people (even SCOTUS) to draw the lines over universal principles (like freedom of speech) to cherry pick what fits their agenda, the universal principle is defeated. Roth test is their attempt to draw the line.
Whoever that gets to interpret words plays God. That's why Deng XiaoPing insisted that Beijing has ultimate interpretation rights to the Hong Kong Basic Law (mini-constitution). Martin Lee could write whatever he wanted in Basic Law when he co-drafted it and ultimately it wouldn't matter because Beijing can bend the words to mean whatever they wanted.
Socialists (national or global) are all collectivists constantly stretching the interpretation of common words beyond our common sense to achieve their goals. It's called double-speak. We need to educate people to spot cheats in interpreation/narratives so even when media gets corrupted, they cannot fool us.
We should not extend the 'limitation to free speech' to curb whatever people think it's 'offensive' or unethical, even if it's through free-will democratic vote. Constitution is a mechanism to preserve certain inalienable rights (such as basic freedoms that we take it as axioms) from the mob rule (democracy) so populism doesn't turn into tyranny. Conservatives poked loopholes into the 1st Amendment through attempting to censor porn and swearwords (like FCC's 7 words you can't say on television), and now the socialists/collectivist ran with the Pandora box of 'free speech exceptions/re-definitions' and are bullying the conservatives hard with 'hate crime', 'hate speech' which they can arbitrarily stretch the line with the vague word 'hate'.
Please let me know what you think my re-framing of the problem. I think "I know it when I see it" is total bullshit as it's insidiously converting rule-OF-law into rule-OF-men: the interpretation rights is more personalized with such reasoning. Being offensive (or hurts other people's feeling) is not a crime; harming other people's life, body, property or basic freedoms are crimes.