Apr 10, 2016

Conn. Judge Says Journalist Can't Be Sued for Critical Coverage of Religious Sect

Connecticut Law Tribune
April 7, 2016

Falun Gong is a Chinese spiritual practice involving yoga-like exercises and breathing techniques, as well as philosophies designed around truthfulness, compassion and forbearance. Introduced in 1992, it's been described as a cult by some, and the Chinese government banned it in 1999.

Among those who have reported critically about the sect is Zhao Zhizhen, the director of a Chinese television station. Zhao has visited Connecticut in the past, coming to visit a daughter who attended Yale. But his more prominent role in the state is that of a lawsuit defendant.

Zhao was sued in U.S. District Court more than a decade ago for allegedly writing and broadcasting hate speech about the controversial movement. The case was brought in Connecticut by Falun Gong supporters who had fled China. They claim Zhao's work incited torture of Falon Gong members by Chinese police and prison guards. They alleged that Zhao distributed anti-Falun Gong material in the U.S. and participated in other anti-Falun Gong activities in this country.

But now a federal judge in Hartford has dismissed the lawsuit, which was based on the Alien Tort Statute, a 215-year-old law that until recently was interpreted to allow foreigners to sue in federal court over serious human rights violations anywhere in the world. However, a 2013 U.S. Supreme Court decision limited the use of the act, and Connecticut U.S. District Judge Robert Chatigny declined to apply it to this case.

The judge also opined that the claims against Zhao, whose critical reporting took place two decades ago, should have been pursued earlier, and that it would now be problematic for Zhao to defend himself in view of the time lapse and reduced access to evidence.

Zhao had argued that American free speech principles should protect him. He argued that his reporting on the Falun Gong was similar to that aired on "60 Minutes" and other U.S. programs. "This was one of the last of a dozen of unsuccessful cases brought by the Falun Gong against Chinese officials in the U.S. to try to embarrass them and find them civilly guilty of horrendous crimes," said Zhao's attorney, Bruce Rosen of McCusker, Anselmi, Rosen & Carvelli in Florham Park, New Jersey.

Rosen said his client wrote a series of articles in China about the Falun Gong long before the Chinese government banned the group. The lawyer said Zhao believed the teachings of the sect's leader—that followers avoid taking medicine, abandon their traditional family and pledge their devotion to him as a deity—were dangerous.

"These articles would have been completely acceptable under U.S. libel laws, but the lawsuit also tried to tag him with responsibility for everything the government said and did regarding Falun Gong for years after," Rosen said.

The plaintiffs were represented by Terri Marsh of the Human Rights Law Foundation in Washington, D.C. Marsh stated in court documents that after Zhao's articles were published and TV shows aired, Falon Gong members were subjected to "regular beatings, electrocution with electric batons, sleep deprivation, sustained exposure to extreme cold, and forced viewings of [Zhao's] anti-Falun Gong propaganda, resulting in extreme emotional and mental harm."

Marsh stated that Zhao used the word "douzheng" in his reporting, which she says is a call to "eradicate" Falun Gong members in China. Though it's not clear exactly how many people were tortured and killed for being Falun Gong followers, the New York Times put the death toll at 2,000 in 2009.

The followers alleged Zhao violated both the Alien Tort Statute and the Torture Victim Protection Act. According to Rosen, a 2013 U.S. Supreme Court decision, Kiobel v. Royal Dutch Petroleum, made it difficult for plaintiffs to apply the statute in cases such as this one. The ruling said that there should be a "presumption against extraterritoriality," meaning that the act should not be applied to alleged human rights abuses or other international law violations that occurred in foreign countries.

In turn, Marsh has attempted to show that the allegations against Zhao were linked to activities that took place in the United States. But Chatigny said the allegations "do not charge conduct on the part of the defendant that touches and concerns the United States with sufficient force to support an [Alien Tort Statute] claim after Kiobel."

Marsh said she would review the decision carefully "to see if there are grounds for appeal or for the refiling of the same operative facts under a state law statute that provides the same relief as the federal [Alien Tort Statute] without the hurdles created by Kiobel."

Marsh thinks her clients would have had their day in Connecticut federal court if not for the 2013 Supreme Court ruling. "Under the law in place prior to that decision, I believe we would have prevailed at the motion to dismiss phase and at trial," said Marsh. "The trial would have included experts testifying as to the role of propaganda in ethnic cleansing and widespread torture campaigns.•


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