People Should Be Masters in Both Political and Cultural Areas: Toward a New “Free Speech Clause” in China

Abstract

This article tries to challenge—more accurately, to supplement—the “politico-centered” view in understanding China’s free speech. Unlike the conventional view that only treats Article 35 as China’s free speech clause and mainly focuses on political speech, this article argues that China’s “free speech clause” includes not one, but three articles: 35, 41 and 47. While Articles 35 and 41 guarantee the right to political speech, Article 47 explicitly safeguards citizens’ right to cultural construction. The underpinning of this new interpretation is the dual constitutional ideal embedded in the Chinese Constitution: the Chinese people should be masters in both political and cultural areas. All speech, both political and cultural, that could further this dual ideal should be protected. Also, by tracing the development and changes of above three clauses in China’s three earlier Constitutions (the 1954 Constitution, the 1975 Constitution, and the 1978 Constitution) as well as the newly discovered 1953 Draft, this article shows that this unique understanding of free speech can be found throughout the evolvement of the Chinese Constitution; it also explains how China’s “free speech clause” has been shaped over time and why it has taken its present form.