Faculty Scholarly Dissemination Grants

Title

The Diffusion of a Constitutional Idea: Public Figures and Equality Before the Law in China

Department

Political Science Department

College

College of Liberal Arts and Sciences

Disciplines

Social and Behavioral Sciences

Abstract

As a study of diffusion of law, this paper analyzes the ways in which the US legal concept of public figures spread in China. In New York Times v. Sullivan, the US Supreme Court made it clear that when it comes to libel cases involving public officials, the Court casts the balance strongly in favor of freedom of expression by requiring that public officials show that the newspaper acted with actual malice. This principle was later extended to public figures. In addition to the intrinsic value of freedom of expression, the rational for introducing the doctrine of public figures is the need to rebalance the unequal power relationship the fact that public figures have greater power and greater access to the media than private figures. As the idea of public figures migrated into China, several local courts adopted this concept in their rulings to define the limits of the right to reputation. Due to the power of public officials in China, there is some risk that the right to reputation can be used to silence critics. Questions of equality arise with respect to the actual power of the parties as well as whether public figures should be expected to be more tolerant of public criticism, even when it could harm reputation. This paper examines the development of the right to reputation in China and the diffusion of public figures in the broad context of citizenship construction, a process started in China with a nation-wide discussion of equality before the law in the late 1970s. By investigating the channels, levels, and agents of diffusion, the paper demonstrates that the concept of public figures has been accepted locally but not nationally for both institutional and ideational reasons. Institutionally judges find themselves in a vulnerable position as they apply the concept to cases involving public officials. Ideationally, the concept of public figures calls for sufficient justification that fits the current legal thinking of the recipient country. One such justification is the need to address the inequality in the actual power of parties and, therefore, a renewed discussion of equality before the law may facilitate the acceptance of public figures at higher levels.

Conference Name

Law and Society Association Annual Meeting

Conference Location

Minneapolis, MN

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