U.S. Secretary of State Michael R. Pompeo’s speech on Communist China

Case Background and the Specific Twitter Post

Chen Jingyuan, a Chinese citizen with a PhD, was convicted of “picking quarrels and provoking trouble” (寻衅滋事罪) under Article 293 of the Criminal Law of the People’s Republic of China (PRC Criminal Law) by the Kunming public security, procuratorate, and court system (collectively referred to as the “Kunming authorities”). One piece of evidence used in the conviction was Chen’s forwarding of a Twitter post by the official account of the U.S. Mission to China, “美国驻华使领馆 US MissionCN”, posted on July 25, 2020. The post reads:

“我们…必须与中国人民接触和赋予他们能力——他们是充满活力、热爱自由的人民，与中国共产党完全不同。这要始于面对面的外交。我在一切所到之处都见到才华优秀和勤奋的男女中国人。” 点击这里阅读更多迈克尔·R·蓬佩奥国务卿7月23日关于中国的讲话： https://t.co/7nrlO9p9G3 Translation: “We… must engage and empower the Chinese people—they are a dynamic, freedom-loving people, wholly distinct from the Chinese Communist Party. This begins with in-person diplomacy. Everywhere I go, I meet talented and hardworking Chinese men and women.” Click here to read more of Secretary of State Michael R. Pompeo’s July 23 speech on China: [link]

The post quotes a portion of then-U.S. Secretary of State Michael R. Pompeo’s speech titled Communist China and the Free World’s Future, delivered on July 23, 2020, at the Richard Nixon Presidential Library. The speech emphasizes a distinction between the Chinese people and the Chinese Communist Party (CCP), advocating for empowering the Chinese people through diplomatic engagement. The Kunming authorities alleged that Chen’s forwarding of this post, among others, constituted spreading false information online, causing serious disruption to public order, thus fulfilling the elements of “picking quarrels and provoking trouble.” This analysis evaluates the legal basis for using this specific Twitter post as evidence of Chen’s alleged crime under PRC law.

Legal Framework: “Picking Quarrels and Provoking Trouble” in the PRC

The charge is governed by Article 293 of the PRC Criminal Law, specifically:

  • Article 293(1)(4): Punishes “causing trouble in a public place or public area, thereby causing serious disorder.”

  • The Supreme People’s Court and Supreme People’s Procuratorate Interpretation on Handling Criminal Cases of Defamation and Other Crimes via Information Networks (2013, “Two Highs Interpretation”) provides further guidance on online behavior:

    • Article 5(2): Spreading false information online that is forwarded over 500 times, viewed over 5,000 times, or causes serious public disorder (e.g., mass incidents, public panic) constitutes this crime.

Key legal principles include:

  • Legality (罪刑法定): No crime without a clear legal definition (Article 3, PRC Criminal Law).

  • Subjective Intent: Criminal liability requires intent or negligence (Article 14).

  • Evidence Standards: Conviction requires clear and sufficient evidence (Article 53, Criminal Procedure Law).

  • Freedom of Expression: The PRC Constitution (Article 35) guarantees freedom of speech, though this is often limited by laws protecting public order and state interests (Article 51).

Analysis of the Twitter Post as Evidence

1. Objective Elements: Act, Falsity, and Harm

To establish the crime, the Kunming authorities must prove:

  • Act: Chen forwarded the Twitter post.

  • Falsity: The content of the post is false.

  • Harm: The act caused serious disruption to public order.

a. The Act of Forwarding

Chen’s act of forwarding the Twitter post is undisputed. The authorities likely obtained electronic data (e.g., Twitter logs) showing Chen’s interaction with the post, as referenced in the indictment and court documents (e.g., “network online extraction records” and “electronic data extraction lists”). This satisfies the actus reus requirement.

b. Falsity of the Content

The post quotes Pompeo’s speech, distinguishing the Chinese people from the CCP and advocating for their empowerment through diplomacy. The Kunming authorities, per the court’s judgment, deemed this content “false information” that “insults and attacks national leaders and the current political system.”

Evaluation:

  • Accuracy of the Content: The post directly quotes Pompeo’s July 23, 2020, speech, and the provided link leads to the official U.S. Embassy website, which contains the full speech text. A review of the speech confirms that the quoted excerpt is accurate and unaltered. Pompeo indeed stated, “We… must engage and empower the Chinese people—they are a dynamic, freedom-loving people, wholly distinct from the Chinese Communist Party,” and emphasized “in-person diplomacy” as a means to achieve this.

  • Labeling as “False”: Under PRC law, “false information” in the context of Article 293 and the Two Highs Interpretation typically refers to fabricated facts (e.g., rumors about events or disasters), not political statements or diplomatic rhetoric. The post’s content is a direct quote from a public speech by a foreign official, constituting political expression rather than a factual claim that can be deemed true or false. The authorities’ classification of this as “false” likely stems from its criticism of the CCP and its attempt to separate the Chinese people from the Party, which they interpret as an attack on the PRC’s political system. However, this interpretation lacks legal grounding, as the Two Highs Interpretation does not categorize foreign political statements as “false information” unless they involve verifiable falsehoods causing harm.

  • Legal Basis: The determination of falsity lacks a clear legal or factual basis. The post accurately reflects Pompeo’s speech and is not fabricated. Labeling it “false” simply because it criticizes the CCP misapplies the Two Highs Interpretation’s criteria. Moreover, the PRC Constitution (Article 35) protects freedom of speech, and international norms (e.g., ICCPR Article 19, which China has signed but not ratified) suggest political expression should be protected unless it directly incites violence or harm—neither of which is alleged here.

c. Serious Disruption to Public Order

The court repeatedly asserts that Chen’s forwarding caused “serious disruption to public order,” a necessary element under Article 293(1)(4) and the Two Highs Interpretation.

Evaluation:

  • Lack of Evidence: The court provides no specific evidence of disruption—e.g., forwarding or view counts, public reactions, or incidents (e.g., protests, panic). The Two Highs Interpretation sets quantitative thresholds (500 forwards, 5,000 views) or qualitative impacts (mass incidents), but the authorities offer no data. Chen’s lawyer noted his account had fewer than 100 followers (mostly inactive) and his total forwards over decades were under 100, far below the statutory thresholds.

  • **Impact of the Specific Post: The post quotes Pompeo’s speech, distinguishing the Chinese people from the CCP and advocating for their empowerment through diplomacy. While its criticism of the CCP may be sensitive in the PRC, it does not incite violence, spread panic, or target individuals for harm. The content is a diplomatic statement and political viewpoint, unlikely to cause “serious disorder” in the PRC, especially given Chen’s limited online reach. Replies to the post on Twitter (e.g., “Chen Weihua(陈卫华)” calling Pompeo “ignorant,” “君子中庸” questioning U.S. policies) indicate some discussion, but there’s no evidence of broader societal impact or disorder.

  • Legal Basis: The absence of evidence for disruption undermines the legal basis for this element. The Two Highs Interpretation requires a demonstrable impact, not a speculative one. The court’s conclusory statement violates the evidence standard (Criminal Procedure Law, Article 53).

2. Subjective Element: Intent

The authorities must prove Chen “knowingly” spread false information with intent to disrupt public order. The court inferred intent from Chen’s high education (PhD), claiming he “should have discerned right from wrong.”

Evaluation:

  • Knowledge of Falsity: No evidence shows Chen knew the content was false. The post quotes a verifiable public speech, with a link to the official U.S. Embassy website. Chen’s defense argues he forwarded it for academic interest, not to deceive. The authorities provide no direct evidence (e.g., Chen’s statements admitting knowledge of falsity) to support this claim.

  • Intent to Disrupt: The post’s diplomatic and political nature, combined with Chen’s limited online presence (small follower base, low engagement), suggests no intent to cause disorder. Chen claims he forwarded it for personal study, a plausible motive given his academic background. The prosecution offers no counterevidence of a malicious purpose.

  • Education as Proof of Intent: The court’s reliance on Chen’s education to infer intent is legally flawed. High education does not equate to criminal intent, especially without evidence he recognized the content as false or aimed to disrupt order. This inference violates the principle that intent must be proven, not presumed (Article 14, PRC Criminal Law).

  • Legal Basis: The subjective element is unproven. PRC law requires clear evidence of intent (Article 14), and the court’s speculative reasoning fails to meet this standard.

3. Legal Application: Applicability of Article 293

The Kunming authorities applied Article 293, arguing Chen’s forwarding of the post constituted “picking quarrels and provoking trouble” by spreading false information online.

Evaluation:

  • Scope of Article 293: This article is a catch-all offense, often criticized for vagueness and overreach. The Two Highs Interpretation aims to narrow its online application by setting specific criteria (falsity, intent, and harm). Here, the lack of evidence for falsity and harm suggests Article 293 may not apply.

  • Alternative Charges: If the authorities viewed the post as defamatory to the CCP, Article 246 (defamation) might apply, but this requires a specific victim and intent to harm reputation—neither is clearly established. If deemed subversive, Article 105 (inciting subversion) could apply, but this requires intent to overthrow the state, which is not supported by the post’s content or Chen’s actions.

  • Political Speech: The post’s content is political speech from a foreign official’s public address. Under PRC law, such content is sensitive but not inherently criminal unless it incites violence or verifiable harm. The authorities’ application of Article 293 appears to stretch its scope to suppress critical discourse, potentially violating the legality principle (Article 3) and freedom of speech (Constitution, Article 35).

4. Procedural and Evidentiary Issues

Chen alleges procedural flaws, including a non-public trial and restricted defense rights. The use of the Twitter post as evidence also raises questions about selective enforcement.

Evaluation:

  • Selective Enforcement: The original poster (“美国驻华使领馆 US MissionCN”, the official U.S. Mission account) and other forwarders were not prosecuted, per Chen’s appeal. This raises equality concerns (Constitution, Article 33), as the authorities singled out Chen without clear justification.

  • Evidence Handling: The authorities likely extracted the post via electronic data collection, but the court does not specify how it assessed the post’s content or impact. The lack of transparency in evidence presentation (e.g., no forwarding/view counts) undermines the conviction’s legitimacy.

  • Procedural Fairness: The closed trial and restricted defense rights (e.g., Chen’s inability to speak) may violate Criminal Procedure Law (Articles 14, 183), further weakening the legal basis for using this evidence.

Conclusion: Legal Basis Assessment

The Kunming authorities’ use of Chen’s forwarding of the Twitter post by “美国驻华使领馆 US MissionCN” as evidence for “picking quarrels and provoking trouble” lacks a robust legal basis under PRC law:

  1. Falsity Unproven: The post accurately quotes Pompeo’s speech and is not false. Labeling it “false” misapplies the Two Highs Interpretation’s criteria.

  2. Harm Unproven: No evidence shows the forwarding caused serious public disorder, failing the statutory thresholds (500 forwards, 5,000 views, or mass incidents). Chen’s limited online reach makes such impact implausible.

  3. Intent Unproven: The authorities provide no evidence Chen knew the content was false or intended to disrupt order. Inferring intent from his education is speculative and legally invalid.

  4. Misapplication of Law: Article 293’s use here stretches its scope beyond clear statutory intent, potentially violating the legality principle and freedom of speech protections.

  5. Procedural Flaws: Selective enforcement and procedural irregularities further undermine the conviction’s legitimacy.

Final Assessment: The Kunming authorities’ reliance on this Twitter post as evidence of Chen’s crime does not withstand legal scrutiny. The post’s verifiable content, Chen’s limited influence, and the absence of proven harm or intent suggest the charge is unsubstantiated. This case reflects an overbroad application of Article 293, possibly motivated by political considerations rather than legal merit, raising concerns about the rule of law and freedom of expression in the PRC.

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