The corruption in China is legendary as communist officials acquire huge homes and wealth in assisting businesses take land and create industries. The Chinese government regularly responds to such corruption stories with executions but they are viewed as little more than a lethal form of public relations. Now, however, the family of Chinese premier Wen Jiabao has retained lawyers after a New York Times report that the family has amassed a massive amount of wealth in accounts spread around the world. It is an ironic moment given the government’s continued refusal to allow ordinary Chinese to have real legal recourse to contest their treatment, including the lost of land. The Times article details Wen’s relatives have alleged amassed assets worth at least $2.7bn (£1.7bn) around the world.

Much of the article is factual assertions and the Times is careful in qualifying its assertions on the source of these funds as opposed to their existence. Thus, it will not be defended as opinion for the most part. However there are thousands of sites that have picked up the story and made more direct corruption allegations. Many of these secondary publications would fall into the opinion category. That could raise the type of issue that was addressed in Ollman v. Evans 750 F.2d 970 (D.C. Cir. 1984). In that case, Novak and Evans wrote a scathing piece that stated in part:

[t]he proposal to name Bertell Ollman, Professor at New York University, as department head has generated wrong-headed debate. Politicians who jumped in to oppose Ollman simply for his Marxist philosophy have received a justifiable going-over from defenders of academic freedom in the press and the university. Academic Prince Valiants seem arrayed against McCarythite [sic] know-nothings . . . But neither side approaches the crucial question: not Ollman’s beliefs, but his intentions. His candid writings avow his desire to use the classroom as an instrument for preparing what he calls ‘the revolution.’ Whether this is a form of indoctrination that could transform the real function of a university and transcend limits of academic freedom is a concern to academicians who are neither McCarthyite nor know-nothing.”

The column goes on to take apart Ollman’s past writings, including what Ollman stated were clear misrepresentations. The court acknowledges that “the most troublesome statement in the column . . . [is] an anonymous political science professor is quoted as saying: ‘Ollman has no status within the profession but is a pure and simple activist.’”

Ollman sued but Judge Kenneth Starr wrote for the D.C. Circuit in finding no basis for defamation. This passage would seem relevant for secondary posters and activists using the article to criticize the family:

The reasonable reader who peruses an Evans and Novak column on the editorial or Op-Ed page is fully aware that the statements found there are not “hard” news like those printed on the front page or elsewhere in the news sections of the newspaper. Readers expect that columnists will make strong statements, sometimes phrased in a polemical manner that would hardly be considered balanced or fair elsewhere in the newspaper. National Rifle Association v. Dayton Newspaper, Inc., supra, 555 F.Supp. at 1309. That proposition is inherent in the very notion of an “Op-Ed page.” Because of obvious space limitations, it is also manifest that columnists or commentators will express themselves in condensed fashion without providing what might be considered the full picture. Columnists are, after all, writing a column, not a full-length scholarly article or a book. This broad understanding of the traditional function of a column like Evans and Novak will therefore predispose the average reader to regard what is found there to be opinion.

A reader of this particular Evans and Novak column would also have been influenced by the column’s express purpose. The columnists laid squarely before the reader their interest in ending what they deemed a “frivolous” debate among politicians over whether Mr. Ollman’s political beliefs should bar him from becoming head of the Department of Government and Politics at the University of Maryland. Instead, the authors plainly intimated in the column’s lead paragraph that they wanted to spark a more appropriate debate within academia over whether Mr. Ollman’s purpose in teaching was to indoctrinate his students. Later in the column, they openly questioned the measure or method of Professor Ollman’s scholarship. Evans and Novak made it clear that they were not purporting to set forth definitive conclusions, but instead meant to ventilate what in their view constituted the central questions raised by Mr. Ollman’s prospective appointment.

The main defense for the New York Times will be a seminal case that it made possible: New York Times v. Sullivan. Public officials are placed under a higher standard for defamation in the case: requiring a showing of actual malice or knowing disregard of the truth. This constitutional-based standard is designed to protect free speech, particularly when directed against powerful politicians. Of course, these people are not public figures in the United States and some do not hold public offices. However, the same standard applies to public figures.

The public figure standard was established in Curtis Publishing v. Butts (1967). The case involved a March 23, 1963 edition of The Saturday Evening Post alleging that former University of Georgia football coach Wallace Butts conspired with University of Alabama coach Paul “Bear” Bryant to fix a 1962 football game in Alabama’s favor. In a 5-4 decision, Chief Justice Warren wrote a concurrence that extended the ruling in New York Times v. Sullivan on public officials to public figures. He found the same reasons for applying the higher standard to public officials as present in cases involving public figures:

[I]t is plain that, although they are not subject to the restraints of the political process, “public figures,” like “public officials,” often play an influential role in ordering society. And surely, as a class, these “public figures” have as ready access as “public officials” to mass media of communication, both to influence policy and to counter criticism of their views and activities. Our citizenry has a legitimate and substantial interest in the conduct of such persons, and freedom of the press to engage in uninhibited debate about their involvement in public issues and events is as crucial as it is in the case of “public officials.” The fact that they are not amenable to the restraints of the political process only underscores the legitimate and substantial nature of the interest, since it means that public opinion may be the only instrument by which society can attempt to influence their conduct.

One of the key issues in contention appears to be the wealth associated with Wen’s mother — wealth claimed to be $120 million. That would come down to whether the New York Times had a reasonable basis for the estimate. She would also likely be viewed as a public figure in the United States.

In the meantime, foreign ministry spokesman, Hong Lei, is portraying this as slap against the Communist dream (which appears to include amassing hundreds of millions of dollars according to the NYT’s account): “There are always some voices in the world who do not want to see China develop and become strong. They try every means to smear China and the Chinese leaders and create instability in China. Their scheme is doomed to failure.”

On my trips to China, I have always been amazed by the large homes and wealthy lifestyles of public officials — and the knowledge of many Chinese who simply shrug it off as standard corruption like the weather.

Wen may have lawyers but he may not have a particularly good lawsuit. The most important defense to defamation remains truth. That could put the family in a difficult position. As a highly secretive family in a highly secretive country, they are not used to American discovery rules. They could be forced to disclose copious amounts of financial records to make their case. Many could find that even a few million dollars as opposed to hundreds of millions as a curious nest egg for “Communist” leaders and their families.

Wen or his family would have one to two years to sue the Times depending on where they decided to file. They would expect years of discovery and motions practice before trial, including fights over claims of journalistic privilege.

I think that the Chinese leader may want to avoid this particular venture into civil liability systems.

Source: LA Times and Foreign Policy