Google Does Evil: The Rise of Brain-Damaged Pundits

Yesterday, one of my partners in crime, Kai Pan, wrote a devastating slap down of an Op/Ed written by Nicole Kempton, the director of a “research foundation” whose sole purpose seems to be digging up dirt on the People’s Republic of China.

Everyone needs a hobby, I suppose. To his credit, Kai did not smack around Ms. Kempton simply because of her prejudices. No, his criticisms were limited to her disorganized, rambling screed against the PRC in its treatment of Google. The fact that Kai was able to do so in a completely geeked-out manner (post allusions included Bizarro and Mirror, Mirror — if you have to ask, you are not worthy) made the post an instant china/divide classic.

The Pointless Debate Rages On

Because of the high bar set by Kai, I am reluctant to prolong any discussion of this topic. However, I shall in fact run the risk of engaging in a spectacular Kemptonesque ranting failure here for two reasons:

1. Kempton’s article was posted on The Huffington Post, a U.S.-based news/politics site that is left-leaning and generally not supportive of the PRC. As luck would have it, a second anti-China Google piece was posted on HuffPost and, lucky me, it was written by a very smart trade lawyer named Gilbert Kaplan who ended up writing some very stupid things. When opportunity knocks, you gotta blog about it.

2. Even more important, though, I will be a speaker at the 2010 Asia Law Society Symposium this Saturday at the University of Michigan Law School. The conference will cover Corporate Social Responsibility and the Rule of Law and I, you guessed it, will be talking about the Google dispute. So I need to get the creative juices flowing on this subject anyway.

There has been so much written on the Google China kerfuffle since December that pretty much any discussion is bound to include a great deal of restatement and meta-analysis. For my discussion on Saturday, I plan to spend five minutes on background, setting out the timeline and most important facts. For the purposes of this post, let’s assume you all are up to speed on the minutiae of Google’s ongoing dispute with Beijing.

A Failure to Communicate

On Saturday, I intend to spend a few minutes on a Powerpoint slide I prepared entitled “Emotions, Myths and Irrationality,” which contains a short list of some of the more batshit crazy statements made by commentators over the past couple of months. This leads us directly to Mr. Kaplan and his somewhat bizarre take on the Google situation.

Keep in mind that Kaplan used to be very high up in the U.S. Department of Commerce. Admittedly, the DOC has a reputation for being rather hit or miss when it comes to talent, at least that’s what people have told me over the years. But I’m nothing if not polite and respectful — let’s assume that Kaplan is sharp as a tack. He is currently practicing international trade law at King & Spalding, a very reputable U.S.-based law firm.

The easiest way to introduce Kaplan’s argument is to give you an excerpt of his first paragraph. This basically says it all:

[I]f we allow market access for the fruits of the great Chinese industrial machine, creating jobs for 100 million Chinese workers (the number of Chinese employed in manufacturing), they need to allow access to our creative enterprises, such as Google.

I will remind you that this is coming from a partner at a large law firm who practices international trade law. If I understand Kaplan correctly, he is suggesting that Google’s situation should be looked at within the context of the overall bilateral trade between China and the U.S. Why is that? No frickin’ clue. Somehow Google is deserving of a “free pass” when it comes to observing Chinese laws because, well, you know, Americans buy a lot of crap from China.

Did I mention that this guy went to Harvard Law School?

Moving on:

But not only is Google being forced out by a series of actions and deliberate inactions of the Chinese government, but Google’s affiliate, YouTube, was never even let into China in the first place. It is perennially blocked by their “great firewall”.

With this, we start moving into the territory of “startlingly ignorant” and “hopelessly inaccurate.” I wonder if Kaplan’s partners at King & Spalding know what he’s putting out there in the public discourse?

In the words of one of my favorite bloggers, let’s document the atrocities:

1. Google is not, and has never been, forced out of the country. If they drop self-censorship on, they are choosing to violate Chinese law; that’s the only “action” going on here. I am unaware of the “inaction” on behalf of the PRC government that is alluded to by Kaplan, unless he thinks they should engage in legal reform, including an overhaul of national security policy, to accommodate Google.

2. YouTube was never allowed into China and is blocked by the GFW? Almost sounds like Mr. Kaplan thinks this “blocking” was the reason why YouTube isn’t here. Bizarre, to say the least.

Look, YouTube could have come here just like anyone else, provided they dealt with foreign investment restrictions, IT licensing requirements, and censorship rules. Is this an industry that is open to foreign companies? Not at all. But so what? There are quite a few industries that still have investment restrictions on them even post-WTO accession. Nothing wrong with that, and Kaplan certainly understands this. Does Kaplan want to go back 10+ years and renegotiate China’s WTO Accession Agreement? Have at it, Hoss.

3. Is YouTube “blocked” by the GFW? Of course it is. It is an offshore site with content deemed unsuitable for all the impressionable folks over here. I assume that the difficulties inherent in screening such content make it impossible to do selective filtering, so the entire domain is blocked. Am I missing something here?

If I didn’t know any better, I’d say that Kaplan wasn’t really a trade lawyer, he just plays one on TV. Consider this:

Many newspaper websites are regularly censored. The Chinese competitive sites that are willing to go along with the censorship and the dictates of the Chinese government, like Baidu and Alibaba, are the dominant players on the Chinese internet.

Yes, Mr. Kaplan, China has censorship. It’s the law. If foreign media companies post sensitive material online, it will be filtered. Local companies must do so according to Chinese law or risk direct penalties. This is all well known and, by the way, completely consistent with WTO law.

Kaplan seems to be skirting very close to the argument that:

1. Foreign companies do not self censor and are filtered by the PRC GFW.

2. PRC companies self censor and are therefore not blocked by the GFW (incorrect, but we’ll let that go for the moment).

3. Therefore local sites get more traffic and are able to build up market share. Foreign companies are, by this entire mechanism, not allowed to fairly compete in the market.

Again, this man is not an idiot. But that kind of reasoning is incredibly idiotic, ignorant, and misleading. It’s completely illogical.

Just in case you thought it couldn’t get any better, Kaplan actually says later on that this sort of system brings up not only questions of free speech, but it also constitutes a trade barrier.

Two inane comments, but I’ll give him freedom of speech for the moment, even though there is no such thing under local law. No, what really leaves my lower jaw flopping in the breeze is Kaplan’s assertion that China’s censorship regime should somehow be seen as a trade barrier. I am shocked. And appalled. Both shocked and appalled. And maybe flabbergasted as well.

Let’s review. Google wants in on the China market. Chinese government says no problem, you just need to follow the law. Google says OK, we’ll do just that. They then go their merry way, building up market share and doing fine.

Fast forward to the present. Google says to government: you know, we decided that those rules you put into place, well, we don’t want to follow them anymore. But we still want to do business here. Government says: you’re welcome here, but you still need to follow those rules we talked about before.

So Google pulls out, Baidu benefits. Now you have the foreign company worse off and the local company eating its lunch.

Kaplan looks at this set of facts and says that it had nothing to do with Google deciding on its own to stop following clearly-stated local law. No, this was all about trade protectionism; Google has been treated unfairly.

Did I mention that this guy is a trade lawyer? You can go to him for trade advice, and he’ll probably charge you USD 600 per hour for his expert opinion. What a racket!

Lawyers get to charge a lot of money because they sound intelligent. Here is Kaplan’s attempt:

If a company cannot access the largest market in the world for its product it loses enormous revenue opportunities. And as a matter of economies of scale and ability to move down the learning curve, it becomes economically disadvantaged versus its competitors going forward.

Some nice econ jargon, but ultimately Kaplan in just engaging in George Will-ish argumentation. Use impressive language and pretend that everything is flowing logically. If you’re lucky, no one will pause to connect the dots, and they’ll just skip to your conclusion.

Yeah, can’t do that in this case, because the logic is absent. I can’t follow the train of thought here because there isn’t any. Sorry to be so pedantic here, but let’s deconstruct this:

1. China Internet is a big market.

2. Google is not/will not be in that market.

3. Google will not enjoy greater economies of scale as a result.

4. Google’s competitors will therefore have the advantage.

Crazy person says what?

OK, first, to reiterate: Google is the one deciding to leave the market. Second, although China is a big market, I think Google enjoys significant economies of scale globally anyway. Third, who are these mysterious competitors who will smack Google around because they got out of China? I hope Kaplan isn’t talking about Baidu, which is a large, but purely local company. Big market, big revenues for Baidu, but they are not a global competitor to Google.

Just because you use the terms “economies of scale” and “learning curve,” it doesn’t prove you’re smart. For God’s sake, after an hour or so staring at a thesaurus (Baby’s First Thesaurus, I recommend it), I was able to insert the word “pedantic” into this post (see above), and my brain can barely handle autonomic functions on any given day, which explains the adult diaper and bib.

Bow Down to the Laptop Emperor!

Moving on (’cause I can’t stop now).

Now Kaplan just starts whining, which is sad. “Wah! We (the U.S.) lowered tariffs for certain goods and now China sells us computers! Wah! We allowed Lenovo to buy IBM’s laptop unit, and now we have to buy laptops from China! Wah! We could have stopped the IBM deal, but we didn’t! We are such fools to have trusted those Chinese!” (Note: I paraphrased, somewhat loosely.)

Listen, jughead, it’s called free trade. Look it up. It’s in the dictionary right before FUBAR, which is a decent description of your argument. By the way, his legal opinion on stopping the IBM deal via a CFIUS review (he references the Exon-Florio Amendment) is, I suspect, bullshit. Then again, the folks at CNOOC and Huawei might disagree with me.

So why did the U.S. (further) open its markets to China ten years ago?

[W]e believed that as China industrialized and moved along the economic and knowledge highway they would become a great market for those goods where we continue to have an advantage, things like search engines, and streaming video, and innovative web sites.

Yes, when the U.S. was negotiating WTO accession back in the late 90s, everyone’s attention was on streaming video! All that stuff about IP, financial services, and tariffs? Irrelevant.

Capitalist Suckers!

And China failed to keep its bargain, damn it. All we cared about was that streaming video, and look what happened. Sure, American companies can manufacture practically anything they want in China now, they can distribute product themselves, and they can make piles of money in even tightly-restricted industries like financial services.

But all that pales in comparison to what everyone really cared about: streaming video, where all the smart money was in 1997.

Kaplan ends (yeah, finally!) on a low note. He says that Google represents the best, maybe last chance, for the U.S. to make some decent scratch in this competitive global environment. If Google can’t make it in China, then essentially the U.S. is screwed.

The fact that Google is pulling out suggests to Kaplan that the fix is in. It must be protectionism, or a conspiracy between the Illuminati and the 1985 Chicago Bears to destroy the U.S. economy, because Google is simply too good to lose this fight.

Just for shits and giggles, Kaplan finishes up with this non sequitur:

Reciprocity is what the trade agreements of the world are about. We let you sell in our market the goods you can make more efficiently and more creatively. You let us sell in your market the goods and services we produce. If China shuts out our internet companies, we need to shut out their hardware that the internet runs on.

Perfect. A respected (I assume) trade lawyer is suggesting that if Google voluntarily withdraws from China, the U.S. should support a trade action against China that is WTO inconsistent on its face. I don’t know where Kaplan is licensed, but my Bar Association certainly frowns on that sort of thing.

Kai Pan (artist's rendition)

Although I’ll never have enough time this Saturday to really get into the craziness that is Kaplan’s Op/Ed, it and the piece ripped apart by Kai yesterday (see right) perfectly represent the irrationality that has surrounded the Google dispute.

Just to wrap this up, I will be speaking mostly on CSR and Rule of Law this weekend. Since this post has run on longer than a James Cameron epic, and with no dancing smurfs or waterlogged babes to liven it up, I’m going to hold off on those topics until I get back from Michigan. Perhaps at that point, after reflecting upon the conference proceedings, I will be able to write a cogent analysis that is somewhat more discliplined than this word salad.


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  1. Jay (a different one)

    Great post!
    Is Kaplan running for office or something?

    • Thanks. I don’t think he’s running for anything. But like all of us lawyers, he firmly believes his opinion is the right one and wants everyone to know it.

      I don’t fault him for that. Would hit too close to home.

  2. I cannot understand what relation a couple of hackers have with internet censorship. If Chinese hackers hack into Gmail, Google decides to leave China altogether, citing freedom of speech rules, which it has been following all along till now!

    If a couple of Indian hackers hacked into some Gmail accounts, would Google leave India too?

    BTW, Google is showing some double standards here. Google has made itself the self-appointed guardian of Freedom of Speech. But, it is a well established fact that Google had left a backdoor in Gmail to enable NSA to spy on Gmail users. It is this backdoor which the hackers exploited.
    So what the hackers did illegally, the US government does legally.

    I think that Google was just hiding its mistake of not having enough security and being unable to keep hackers out. Google couldn’t defend itself against hackers, and is now blurring the issue, by talking about freedom of speech.

    • I think you fail to see the logic here. Give this analogy a try:

      1. Gmail hacked, therefore Google leaves because of censorship.

      2. U.S. bombed by Afghan-based terrorists, therefore U.S. invades Iraq.

      As you can see, there is a precedent for all this. If you squint hard enough, it all makes sense.

  3. bill

    excellent. you should submit to the huffington post. seriously

  4. mark

    Good article but classic red herring.

    Before reading it, I was a little biased thinking it would have been as poorly written and thought out as the critical piece on Nicole Kempton. On the contrary, I don’t disagree any of its legal and business minutia.

    My take on the China vs Google Show is that it was a case of China’s “sticky fingers” getting caught in Google’s honey jar – (China hacking into Google’s server). Google gets upset and plays the “human-rights-no-censorship-free-speech” card. Simple as that. However, this little mistake gave the US a nice strategic advantage.

    While the general public is diverted with smoke and mirrors – Google’s anti–censorship and China’s national laws – the real issue it that the US and China are jockeying for position for the next war.

    China is/has been singled out as the real threat to the US position as the only superpower. The US realized (too late) that China, not like the former Soviet Union, placed emphasis on building its industrial/manufacturing base.

    The US initially supported this idea because of the hugh profits it made from its investments in China.

    However, the US inadvertently created an economic Frankenstein (China). Now it has to figure out a way to destroy it.

    The Google Show is just one of many that will be used to prepare public opinion and mobilize the mob to kill the “monster.”

    There will be more scenarios (currency devaluation, Iran, North Korea, Tibet, etc.) produced by the US to portray China as the “monster.”

    Unfortunately for China, it makes a perfect “monster.” Its “soft power” does not exist. It has no friends in the world except multi-national corporations, corrupt African leaders, North Korea, and Pakistan. Its public relations is non-existing. It has no music, books, or movies to offer the world or the world is interested in. The Tibetans don’t like China. The Uyghurs don’t like China. No one hides in cargo containers to get smuggled into China.

    As a result, China is playing defense. The argument about Google vs China is really about the US positioning China for an economic (no land war planned for China) coups de grace while China tries to “float like a butterfly.”

    Google vs China is nothing but act one in a Noh performance.

  5. xm88

    But how does obeying China’s very vague and non-public laws regarding censorship hook up with the rights to freedom of expression, etc. Aren’t those also the laws of China? (I’m pretty sure these rights are on the books in China but funny enough, trying to prove it by searching for “China freedom of speech law” puts my internet connection down for a few minutes).

    • Many countries guarantee freedom of speech and yet restrict some forms of speech with respect to national security, obscenity, etc. China is just a bit more, um, “robust” in this area, but the general legal foundation is the same.

  6. xm88

    found it:
    Article 35 of the Constitution of the People’s Republic of China claims that:

    Citizens of the People’s Republic of China enjoy freedom of speech, of the press, of assembly, of association, of procession and of demonstration.

    Of course, this does not include WFOE’s but why should Google follow the law if the PRC govt doesn’t?

  7. gregorylent

    too long. way too long. too much about you.

    what is your point exactly?

    • Yes, way too long. That’s the danger with rants.

      My point: guys like Kaplan are using the Google dispute to put forward wholly irrelevant agendas. In his case, it is an anti-free trade/protectionist agenda. I don’t like it, and I don’t find his arguments persuasive.

  8. Censorship – is the business of the Chinese people and the Chinese government; Google should stay out.
    Servers – what’s on Google’s servers is the business of Google and it’s users; the Chinese government should stay out.
    Evil – a childish notion that does nothing to elevate the debate.
    Video – the interesting bit; arguably it was MTV that levelled the Berlin wall… if I were the Chinese government I would fear it deeply!

  9. The longer this argument rages, the more ignorant, self-serving, and provincial Google appears. At some point this brouhaha must needs implode. My word, at this rate, the PRC appears more internet savvy by the hour.

  10. Terry

    Damn this blog is getting more and more entertaining and interesting. Love your dissection on this one, but your summation on protectionist agendas in the comments would have been good in the main body.

    • Those weren’t his, Terry, they were mark’s, but it was a rant, as Stan said a few times. Hence it’s girth and length and, er…stiffness.

      • Damn, I pretty much laughed my way through the entirety of Stan’s article. It didn’t seem that long to me, but, then again, that’s just me.

      • Terry

        um Adam… i was referring to this quote from Stan:

        “My point: guys like Kaplan are using the Google dispute to put forward wholly irrelevant agendas. In his case, it is an anti-free trade/protectionist agenda. I don’t like it, and I don’t find his arguments persuasive”

        marks points were wonderful and well written, but were not what I would call a succinct summation that I think Ethan was looking for on FB

  11. I think you’ve really oversimplified this episode, and, in your furtive reference to Chinese local companies in media that apparently do not self-censor or get censored?

    Maybe I read it wrong, but I can think of several issues that I will now have to Google for details that have media companies being served directives from CCP authorities on what to print and what not to print online and in print.

    Every local company that deals with media follows unwritten laws on censorship; follows spoken word directives on sensitive political and domestic topics. And there is even the Fifty-Cent Army that goes aroudn to web sites seeding them with commentary that puts the CCP in a good light.

    China is certainly controlled for local and foreign media companies. Maybe I misread what you intended there, and I did, please give me some benefit of the doubt. I would like to give you some benefit, but you also seem to be overly simplifying the rules and procedures they follow.

    • Actually, I think you did misread. I believe we’re in agreement.

      1. Media companies in China engage in self-censorship and are actively censored, both domestic and foreign. Of course. Thought I noted that somewhere.

      2. Google has been the victim of local protectionism, with Baidu being the benefactor. Of course. I still remember typing in “” and getting Baidu’s home page (happened a few years ago).

      My point with these two issues is this. Just because media companies are censored, and just because google has been the victim of local protection, it does not therefore necessarily follow that Google’s present predicament, insofar as it centers on censorship, is an instance of local protectionism by Beijing. I don’t think it is at all.

      Hope that made sense. I’m sitting here in a jet-lagged fog.

  12. xian

    Google’s move had nothing to do with human rights or censorship or all that nonsense. Like all companies, everything done is to make money or prevent loss of money. The larger the company, the more true this is.

    But are you saying the Chinese government doesn’t favor Baidu over Google? Or Taobao over Ebay? Because on Chinese internet it’s pretty much accepted that the government at least covertly backs domestic companies. You should’ve seen the protectionist conspiracy theories people in Chinese forums made when they shut down World of Warcraft. On the other hand, there isn’t really a taboo against protectionism in China as there is in the West, people kinda expect it.

    Therefore, “He says that Google represents the best, maybe last chance, for the U.S. to make some decent scratch in this competitive global environment.” is actually precisely on the money. Foreign companies that flourish in China only do so because the Chinese government lets them go unhindered.

    “Embrace free trade only when it is to our advantage, condemn it if it is to our rival’s advantage”. Old and basic concept to win any trade scenario. The belief that the flow of economy should take its own natural course via free trade without any intervention is one that simply does not characterize China at all. It never has, and it probably never will be. I am not here to threaten our western friends, but China plays to win, not to just participate. Please feel free to read up on our economic history.

    And this: “freedom of speech for the moment, even though there is no such thing under local law.”


    • 1. On local protectionism, see my comment above. I’ve been dealing with local protectionism in China for 10+ years as a corporate lawyer, so I’m very familiar with it, and I would never claim it doesn’t exist. I don’t think I did in my post, either. Google has suffered, as has a lot of other foreign companies, but that’s not the issue I was talking about.

      2. On the lack of support for free trade in China, I would have vigorously disagreed with you a few years ago. Today, I suspect you’re right. Things have gotten worse for a variety of reasons on that front.

      3. My comment on free speech was this. Kaplan mentioned freedom of speech like it was a natural right or something and that of course China should recognize it generally. I just disagree with that point of view. Sure, we can discuss it, and I would love to see a relaxation of speech restrictions here. However, current law says that any company that holds an ICP license must self-censor content. To me, that means that the law says no free speech. We can discuss normative issues, but we have to at least agree with what current law is as a starting point.

  13. DOR

    Rich lawyer demands America’s poor pay more for the necessities of life.

    Great logic.

  14. SteveLaudig

    Twice in the last six months I have had the true pleasure of watching “pundits” lose execrably on “Celebrity Jeopardy”. First Wolf Blitzer proved he knew less than nothing back in early October 2009. And last night [18 March] the Prince of Knowing Knothing Anderson Cooper zeroed himself out by not knowing many things. The last thing he didn’t know was the author of the Wizard of Oz [Frank Baum]. Which seems apt since Cooper reports from and on OzLand.

    • Well, I really should stand up for my boy Wolf. He’s a fellow SAIS grad. He at least was very well educated at one point in his life.

      On a serious note, Wolf used to do some very good Middle East reporting when he was a correspondent. I think he should have stayed where he was. When you take the anchor chair, I think they require some sort of lobotomy.

  15. Nicole Kempt

    Hi Stan. It’s me, back again for more abuse. First, let me reiterate the same comment I made on Kai’s post: Really like your blog, and I’ll definitely come back regularly. My only comment on this – which has basically already been made across a few comment posts already – is that PRC law is a contradictory beast. Freedom of speech is enshrined in Article 35 of the Chinese constitution, but then there are also these censorship laws on the books which seem to contradict it. You know a hell of a lot more about this than I do, so I even hesitate to say anything, but it would seem that one of the most interesting routes to go in terms of lifting internet censorship might be a some form of a constitutional challenge? Is that why the Chinese government always couches internet censorship under “anti-porn” campaigns? Just an idea….maybe the lawyers reading this can comment further?
    As I said on Kai’s post, I’m really glad my post, even though you guys have absolutely excoriated me, has kicked off this debate. It’s an important one to have, and I agree with the reader below that you should whip something up and submit it to the HuffPo. I’m sorry that everyone has objected so mightily to my post-I’m coming from a very specific angle, some might say limited, angle on the issue, but I do think that Google flirting with leaving China has given cover to companies and others in China to talk about Internet censorship more plainly and in the open than they did before. And that is a good thing, as Martha Stewart would say.
    The HuffPo is a news *blog* meaning that I’m expressing an opinion (just as you’ve expressed yours). It’s not a newspaper. If I was writing an Op-Ed, I would have obviously tightened it up more, and probably actually included a lot of the types of points Kai made in his post – I don’t actually think we’re that far apart in our thinking on the issue. But I wanted to get something out sharpish, and I am the mother of an 8 week old baby and am very sleep deprived. Sue me.
    The comments on Kai’s post turned into this amazingly insightful debate about exactly what your blog is titled, the China/Divide. And I think a big reason for that is that everyone has been as civil as possible, respecting each others views and debating the substance of the issues. But then I opened up your blog this morning and saw more very personal language against me, and I must admit I felt glum. You: “I shall in fact run the risk of engaging in a spectacular Kemptonesque ranting failure here for two reasons”. Ouch. My initial thought was, “god, if you’re female and interested in China in any other arena outside business and doing Chinese girls, you’re a dumb blonde”. But then I read through your piece on Kaplan, and it was equally personal, so I felt a bit better. Like I said, I really really like your blog. But can we keep it to the issues and keep my picture off the top of posts in future? I’m pretty sure you guys would want people to talk about the issues your raising instead of talking about you personally.

    • Nicole, thanks for writing. Very cool of you to do so, actually, not to mention gracious.

      Fair enough on the personal attacks. I don’t go there very often, but Kaplan really got my dander up because he’s a trade lawyer. Hit me square in the professional pride, so I don’t fee too bad in my critique of his article. With all the misinformation out there, if we can’t trust a pro to get it right, well, you see what I mean.

      I think your post had some rantyness in it, and I know mine did. Hence my reference. It was incredibly snarky, though, but that’s what happens in rants. Whether there have been any “failures” going on, I guess it doesn’t matter as long as we get a nice debate going.

      The thought of you blogging away without sleep and dealing with a young child makes me feel appropriately bad. I showed your comment to my wife, and she smacked me on the head.

      On the Constitutional issue, I’ve seen that discussion before, and a great deal has been done by some very brave Chinese lawyers over the past few years pushing the law via those kinds of actions. Very exciting, actually, in the areas of property rights, etc.

      However, I think it’s ultimately a loser. Many countries have enshrined free speech into their Constitutions, including the U.S. But do we have complete free speech in the U.S.? Absolutely not, although it’s undeniably better than almost any other country (definitely better than most European nations). I’m not comparing the two here, just trying to point out that a constitutional protection does not completely limit a government from censoring certain kinds of speech. Porn is an obvious one, and yeah, I think anti-porn campaigns have been used to excuse much wider activity. No big shock there.

      Under U.S. law, we have long-standing constitutional tests for when/how speech can be limited. Courts can step in, finding limits have gone too far. Obviously in China, the courts do not act in a vacuum, and so I suspect that any challenge would be met with (no surprise) a politically-motivated judgment, but one that would essentially say that under law, China does indeed have free speech . . . unless that speech violates existing forbidden subjects.

      This is complicated and sort of circular reasoning — I’m still jet lagged and Con Law is not so easy.

      I do find this all rather amusing on the free speech issue, though. In law school, I was the libertarian when it came to free speech. I was against hate crimes laws (have since softened my stance on that), against the “fighting words” exception, and several others. I am of the George Carlin school (he said there are no bad words, just bad thoughts and bad intentions). Therefore we should not limit the expression of words at all.

      I am a huge free speech advocate, for any country. However, I just want to make sure that in this discussion, we characterize current Chinese law correctly.

      At the end of the day, if we ascribe Google’s leaving China as simply a censorship issue, we are missing a lot.

      Thanks again for your comment.

    • Nicole,

      Some people are going to castigate me for this but I think its a little unfair of you to use your motherhood to solicit sympathy for your work and your ideas, which you consciously put forth.

      Likewise, though I added your picture because I like sprucing up my posts with images, I feel that if you associate your picture with your work, there shouldn’t be any reason why others can’t. It’s not as if I’m Perez Hilton and I doodled up your mug to make you look bad, right? I found a really good picture of you. I was even afraid of it pre-emptively soliciting sympathy for you (“Kai, you bastard, stop picking on girls!”). But really, there’s something to be said about standing behind your work, behind what you say.

      People will disagree with you, as people disagree with HuffPo contributors all the time, even in nasty ways, even on HuffPo itself. People lay into me all the time here and elsewhere but unfortunately, I don’t have an 8-week-old baby. It’s not fair to throw out an opinion and then insulate yourself from blowback by invoking an irrelevant fact about yourself.

      “I hate white people, especially Stan. Sorry I don’t have time to qualify what I’m saying because I’m so tired from dealing with my multiple sclerosis.”

      I think you understand what I mean.

      • Jones

        My manager actually used the “MS” excuse a week ago while in a meeting. She apologized to the morning shift people for being so short with them, and blamed it on being tired because of dealing with her multiple sclerosis. I think it’s legit.

  16. Kam Leung

    What’s Google and Internet given us? Emergency communication when all else were down, like within World Trade Towers and Hurricane Katrina? It made lots of money for people before the internet bubble burst. Do not forget the reason internet grew was IM chat and pornography. Ask aol and the Time-aol merger. Excuse me while I go back to my 200-a-day Twitter target and more pornographic images.

  17. blixa

    Wow, you’re an attorney? I thought you guys knew better than to rely so much on ad hominem attacks. “paraphrasing loosely”?

    You’re a fucking clown.

  18. lolz

    It looks like google will be pulling out in a month or so. MS will move in and I guess it will be business as usual. Chinese who still prefer google will just have to learn a little more english and use the regular url instead, provided that GFW does not filter out the domain altogether.

    I agree with the points in this piece. China is becoming the too-convenient bashing target for America’s current woes. America should stand up to China by out-competing China in areas where it has clear advantages. Protectionist policies against China is not only silly in principle but will fail miserably even if implemented. Too many pundits blame China for America’s current economic woes but even if China does not exist America will still be in deep shiznit; manufacturing jobs will still be slowly transferred to countries with lower wages, and the American people will still spend more than they can afford. I can see pundits like Beck/Lambaugh/Oreilly to make stupid arguments like this one but to see some qualified people making the same statements is just disappointing.

  19. So here’s the big problem with your post and criticisms (and this is not to say that the Kaplan/Kempton pieces are any good. I haven’t read them.)
    You assume that all laws are created equal. China has these laws, therefore Google must obey. America chooses open markets and free trade, China chooses not to open certain markets, and that’s OK, it’s like a personal/sovereign choice, no more to be said.
    These assumptions are incorrect. Some laws are immoral. Some international trade postures are improper (think peculiar local standards that make international imports uneconomic). They may be law, but that does not constitute an effective defense.
    Chinese censorship is a blight. Recognizing it as such is not a failure to understand the law, it’s a statement that sometimes the law is bunk.

    • Phil H,

      “Some laws are immoral?” First. Second, what’s immoral about censorship as a concept? Are you behaving immorally if you censor your child? I assume you draw certain lines, and that’s fine, because we all do, but please tell us where your lines are drawn. It’d make this discussion more productive so we don’t misunderstand each other. For example, I’m generally against government censorship in the public sphere, but feel the private sphere is sacred and reserved for the individual’s choices, including an individual’s choice for their family. As such, I can’t say I have any black and white principle here, because the grayness lies precisely in the application.

      As for “international trade postures” being “improper”, what makes something proper or improper? Chinese companies have to go through additional expense to localize their products for foreign consumption. Is that a “peculiar local standard” that affects the economics of international imports? Again, feel free to elaborate and clarify.

      Now, no one is suggesting that a law by itself is sacred and sanctified. What some people are suggesting is that this law isn’t really peculiar to China or applied only to foreigners. Recognizing that some people fail to acknowledge that is not a failure to understand that they’re stating they don’t like the law, it’s a statement that their arguments are not appropriate, persuasive, or…may be “bunk”.

      We need some premises for your positions, Phil. When you say “Chinese censorship is a blight” and the follow it up with “Recognizing it…”, you’re essentially saying, “I can’t believe you don’t agree with me”. That doesn’t get us anywhere.

      Thanks for the comment.

      • Hi, Kai, thanks for the reply – I think. I have to admit I have no idea what your “Now…bunk” paragraph is saying, but I’ll work on the assumption that you mean you’re providing an appropriate rebuttal to silly views published elsewhere. I’ll grant you that. I still haven’t read the Kempton/Kaplan pieces, and have no desire to. They may well be silly, they certainly don’t sound insightful enough to attract me.

        But while you’re knocking down bad arguments, I do think you’re missing some fundamentals.

        1) Censorship. You yourself say “I’m generally against government censorship in the public sphere”. I agree. That seems to me to be an excellent basis for saying “Chinese censorship is a blight.” So, I don’t know what you’re disagreeing with me about. I’m not an absolutist on this any more than you are. I just think that a government refusing to allow its media and private citizens to report public events fully and openly is wrong – morally wrong, politically wrong, and in the long run a pragmatic error. This is what the Chinese government does. I say it’s a blight, you can pick whatever word you want.

        2) Trade. Members of the WTO all agree in principle that “their relations in the field of trade…should be conducted with a view to…expanding the production of and trade in goods and services” (Marrakesh Agreement). An improper trade posture is one which fails to honour this principle. China’s media laws (closely linked to its censorship policy) are an example: they restrict the profitability of foreign media products in the Chinese market, which has the knock-on effect of reducing competition and profitability among Chinese media organization. Another improper trade position would be Europe’s agricultural policy.

        I didn’t spell this stuff out because I really take it all as read. I don’t think I’ve said anything remotely controversial in the two paragraphs above. And as you correctly infer, I am saying I can’t believe you don’t agree with me. I see a direct logical link from your stated positions to my stated conclusion. I would love to hear where our views diverge.

        • Phil H,

          My paragraph with “bunk” was responding to your paragraph with “bunk”.

          “An improper trade posture is one which fails to honour this principle.” And I’m saying they may not see it as improper, especially in the context of so many other “improper” trade postures. So what’s improper or proper? An ideal or real life practice?

          We diverge in how to discuss these matters. I feel you’re passing judgment premised upon moral absolutes you haven’t established as shared with the people you’re passing judgment on. I’m saying there are reasons for their actions that people passing judgment aren’t considering, acknowledging, or solving for.

          • China joined the WTO. It signed the agreements. Past that, I don’t know what it would take to convince you that the Chinese government agrees with the principles for which the WTO stands.

            As for the other side, the censorship issue – obviously there are people in China who disagree with me, and they are in power. I’m saying they’re wrong. Damn right I’m making a judgment, that’s how we make progress in this world. We judge things to be wrong and we stop doing them. What weirds me out is that you actually agree with me, but you still have this desire to defend these people for practices that you yourself know are indefensible.

            I’m sure the anti-China rhetoric does irritate you, and if you want to fight fire with fire, put forward a defense of China that’s as over-the-top as the attacks, that’s fine. I just hope you’re aware of what you’re doing.

    • xian

      Sovereignty, power, stability and most of all, MONEY comes before morality and ideals my friend.

      It is a fine luxury to preach about morals and rights when you’re the wealthiest country in the world. It’s not that China doesn’t appreciate those things, it’s just that we have different priorities. You’ll find that this is the case in most non-Western countries.

  20. Nicole Kempt

    I think most of the debate on this has moved over to this post, so I’ll post my follow-up comment to both Stan and Kai’s post here. I was too dramatic in my setting up of a dichotomy between free and undemocratic states – the point I was trying to make is that I remember during the Clinton (presidential) era, everybody was talking about how the Internet would eliminate repression, because after all, with all that information flowing, how could any authoritarian government go on? Of course they could, and they did. And I don’t think that at that time anyone could foresee the level to which the Chinese government has been able to effectively control the flow of information, even as China has gotten so much richer, and more global. I was living in Nanjing during the WTO accession, and it was really interesting to see how differently that event was reported in China vs. the US, with the US still arguing that economic liberalization would lead to political liberalization. Let’s be honest, it hasn’t. If anything, China’s leaders have cracked down further in the last couple of years, starting with the lead-up to the Olympics. Kai made the point that every country has Internet censorship, even the US, which I agree with, but Liu Xiaobo would not have been jailed for 11 years (after being arbitrarily detained for a year without charge) for circulating a petition which basically called on the communist party to stand for elections and follow their own constitutional principles in the US. Much of the “threat” behind Charter 08 came from the fact that China’s leaders saw it spread like wildfire across the Internet within the first few days, and so many people (I believe the count was 8000 in 2 weeks) publicly signed it even though they knew that would probably mean being invited to “tea” with their local officials. I feel compelled to care about this because if China truly is going to rule the world, as Martin Jacques says, and as it probably will, I would prefer if it did so without jailing people who call for greater government accountability.
    Re: google. Of course I’m not naive enough to think that Google leaving China is really about internet censorship. One of your readers commented: “My take on the China vs Google Show is that it was a case of China’s “sticky fingers” getting caught in Google’s honey jar – (China hacking into Google’s server). Google gets upset and plays the “human-rights-no-censorship-free-speech” card. Simple as that. However, this little mistake gave the US a nice strategic advantage.” That’s part of how I see it. BUT, I think this fracas has a positive side effect for the opponents of internet censorship, and it’s managed to get the conversation going in a way not even the Chinese government can fully censor. I realize that we live in a post-Cold War world where big business is always going to win out over any vague conceptions of human rights, but it’s nice when the product of what is essentially a free trade fight is a discussion about a hot-button human rights issue.
    ps. Kai, you’re right, I should not use my sleep deprivation as an excuse, but when you have children of your own, you’ll understand the temptation to do so. Believe me – 8 consecutive hours of sleep would make me feel like a freakin’ genius right now.

    • Hey Nicole,

      it was really interesting to see how differently that event was reported in China vs. the US, with the US still arguing that economic liberalization would lead to political liberalization. Let’s be honest, it hasn’t. If anything, China’s leaders have cracked down further in the last couple of years, starting with the lead-up to the Olympics.

      I’m not so sure I agree. I largely think the rate of political liberalization that has come from economic liberalization simply hasn’t met our expectations. On the balance, however, I genuinely feel Chinese today are far more free, even in terms of political speech, than they were before. Granted, modern China started from a very low starting point, but progress is still progress. Do I want it to be faster? Sure. But at the same time, I can empathize with why it isn’t faster. Do I wish health care reform was faster in America? Yes. But at the same time, I too can empathize with why it isn’t faster.

      The frustration we have comparing what we thought (even if it was something we led ourselves to believe in with no corresponding promises from China) to what is, is something I again can totally empathize with.

      Kai made the point that every country has Internet censorship, even the US, which I agree with, but Liu Xiaobo would not have been jailed…

      To be clear, I did not make the point that even democratic countries have internet censorship to suggest Liu Xiabo would’ve been jailed in them for what he did. I made the point only to prove the democratic-undemocratic dichotomy false.

      I feel compelled to care about this because if China truly is going to rule the world, as Martin Jacques says, and as it probably will, I would prefer if it did so without jailing people who call for greater government accountability.

      I’m not sure anyone is suggesting that you not care about these issues. At least I’m not. I don’t think you need to explain why you are compelled to care. This was never about you caring; it was about your approach and what we see as fallout from it.

      • Nicole Kempt

        I totally agree that “progress is progress” right up to 2008, when it all started to fall apart again. While lots has continued to liberalize economically – and things really shifted geopolitically when China emerged from the Great Recession relatively unscathed compared to the West, particularly the US – the government has cracked down like nothing I’ve seen before. Granted, I’ve only been studying/living in China since 1999, so I have a very limited viewpoint, but I felt like for the vast majority of that time, China was liberalizing like crazy, and then suddenly there’s this big reversal, at least politically. I think the Party is more paranoid than ever before – particularly about people like you who are not taking official media or the US response at face value. James Mann wrote a really interesting piece in the New Republic recently I think his conclusion is really interesting, because there really isn’t one. The US is realizing that the Chinese government isn’t going to turn into a western European style democracy (this was a naively false hope to begin with of course, but hey, George Bush also thought Iraqis would greet the US forces as liberators so worse calculations have been made!). But now what?

        • Nicole,

          I don’t think 2008 should necessarily be seen as a point where things “fell apart”. Was 1999? 2001? The “line of progress” goes up and down; it isn’t straight. There are going to be setbacks, reminders of how much more there is to go, just as there are spurts and leaps of progress.

        • Nicole,

          “Granted, I’ve only been studying/living in China since 1999, so I have a very limited viewpoint”

          Don’t sell yourself short; your comments here demonstrate clearly that you have your finger on the pulse. A decade observing China (from both within and without) is more than enough to gain a clear understanding – only an ego-defensive Chinese nationalist would claim otherwise.

  21. Nicole Kempt

    And I just want to put this one out there…
    I’ve been thinking all weekend about how the US and China aren’t really talking “to” each other as much as “at” each other – someone on Kai’s post made the point that this goes back to how the West doesn’t understand how China views our relationship on a much longer time horizon (Opium Wars-now) vs. how the US tends to view relations with China from President Nixon’s visit with Mao to now. Then I was thinking of Twitter and how much has been made of the conversations it’s fostering between individuals all over the world, but maybe it isn’t. After all, China sleeps while the US is awake, and vice versa, so we’re not really conversing that much more anyway. I haven’t used Tweetdeck and Hootsuite, but am I right that they just tweet out a user’s pre-loaded tweets?

    • Nicole,

      I’ve used Tweetdeck before. I think it’ll load all (or a set number of) past tweets you haven’t yet seen from the people you’re following each time you start it up. Might be better to ask this question on Twitter though!

      I personally don’t think Twitter is really the best place to engage in conversation with the Chinese IF your goal is to converse with an “average” Chinese netizen is like. The majority of the Chinese on there are self-selected and not quite representative. I mean, you have Ai Wei Wei speaking on behalf of all Chinese telling the Jack Dorsey the Chinese think of him as some kind of god. How many Chinese netizens do you think know who Jack Dorsey is or even what Twitter is? There are good people on there, but just know that it isn’t a good proxy for overall Chinese netizen sentiment.

      • Nicole Kempt

        Sure, I guess I just wonder how best the US and Chinese internet(s) can take each others’ pulse, and then converse in a meaningful way. Ideas?

        • Nicole, sent you an e-mail connecting you with someone asking the same question.

          There’s no easy answer and the generic answer is the least satisfying. People on both sides just need to care more and dedicate themselves to learning more about each other, always giving the benefit of the doubt, and being open-minded. There are already many channels for internet users in both countries to learn and potentially interact with each other in meaningful ways. The more individuals can interact meaningfully, the more meaningful the interaction will be in aggregate. I’m pretty sure I just said what you already know. :|

  22. What a great sweep of comments – dact & redact!

    I think Kai Pan’s point below approaches the edge of the divide, and the discussion unfortunately had to back away (perhaps to be pursued in other anthro-philosophical circles):

    “I feel you’re passing judgment premised upon moral absolutes you haven’t established as shared with the people you’re passing judgment on. I’m saying there are reasons for their actions that people passing judgment aren’t considering, acknowledging, or solving for.”

    I am wondering if it might be fair to say, in relation to censorship anyway, that China’s communist leaders are still trying to adhere to China’s Taoist roots – “The best leaders are those their people hardly know exist.” After all, when speaking of China, we are discussing a nation which has been in existence in one way or another, for 5000 years.

    Considerably longer than the Roman empire – even if you count the last 2000 years as its logical extension.

  23. Ann

    Try this one: Google still does evil– reputation recovery from China grossly undeserved:

Continuing the Discussion