The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The article is here; here is the Abstract:
This article conceptualizes China's new constitutional doctrine of "party supremacy" and explains the implications it carries for speech regulation in both domestic and international public spheres. In particular, the article captures the Chinese Communist Party's scheme of legitimizing its comprehensive speech regulation through party supremacy. This new constitutional doctrine, in contrast to China's earlier dualistic constitutional framework, attempts to overcome the textual and contextual barriers for speech regulation and reshape the constitutive mechanism of the CCP's domestic and international speech rules. Thus, there is a multi-layer "constitutional" spillover effect of intra-party speech regulation. First, the party-state may well redefine the distinction between the regulation of political speech and that of non-political speech: the former is geared exclusively to the CCP's intra-party rules under the tutelage of constitutional law. Consequently, the new constitutional doctrine could alter the structure of China's speech regulatory framework in two aspects: it both verticalizes the entire body of speech norms by prioritizing party rules and fully empowers party organs in the institutional governance of political speech.
Moreover, the party-state strives to extend the new constitutional framework to speech regulation in a transnational context. Here it seeks to reinforce the textual and contextual substance of its regulatory framework for overseas political speech by legitimizing party supremacy through authoritarian constitutional theories, customizing the CCP's speech regulation in cross-border trade arrangements, and building a global identity with constitutional legitimacy for party supremacy that goes against constitutionalism itself. Thus, the article unveils this scheme as the underlying driving force of Chinese speech imperialism—a nuanced and tangible legal regime with a tacit, but uncompromising, constitutional blueprint of a power-monopolizing party to undermine the protection of free speech in liberal democracies.
The author is an Assistant Professor in Global Media and Information Law, Durham Law School (England); an Affiliated Fellow, Information Society Project, Yale Law School; and an Associate, Center for Intellectual Property and Information Law, University of Cambridge. He has written extensively on Chinese law.