Can the Rockets Rebound? The NBA’s Twitter Problem in China

Can the Rockets Rebound? The NBA’s Twitter Problem in China

One tweet from the general manager of an NBA team shows us how a well-intentioned post on social media can have explosive financial and political impact. It also serves as a stark reminder of internet censorship in China.

Two weeks ago, the General Manager of an American basketball team found himself in the middle of an international political scandal. Daryl Morey, who has managed the Houston Rockets for over a decade, tweeted a message of support for protestors in Hong Kong. This led to a massive troll mob against Morey, and a major falling out between NBA fans in China, and one of their best loved teams. With the Chinese Government now involved, the NBA and its players stand to lose millions – if not billions – of dollars in revenue. Just yesterday, Thursday,  17 October, NBA commissioner Adam Silver admitted that the league has already suffered “substantial” losses.

Daryl Morey is considered by many to be one of the most successful managers in the NBA. He is also regarded as outspoken, and an ardent supporter of free speech. On 4 October, he shared a graphic with the words “Fight for freedom, stand with Hong Kong” on Twitter, in reference to the pro-democracy protests that have swept Hong Kong for nearly five months.

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What makes this tweet so controversial?

The NBA has long been considered to be a progressive and outspoken league when it comes to the personalities and opinions of its players. In 2016, The Atlantic called it “America’s most forward-thinking sports league—both in terms of its politics and its marketing strategy.” Contrast this to the NFL, whose treatment of players expressing political opinions differs somewhat, as I explained in What do NFL Contracts Say About ‘Bad’ Bahaviour?

By way of example, the NBA moved its 2017 All-Star Game out of Charlotte, North Carolina over objections to the state’s law that limits anti-discrimination protections for lesbian, gay and transgender people (NBC). More recently, the Golden State Warriors refused to visit the Trump White House, with Commissioner Silver stating that although he “was in favor of the team visiting the White House,” he was “proud of players for taking an active role in their communities and continuing to speak out on critically important issues”.

photo from abc news

The NBA’s presence in China is worth an estimated $4 billion and the country plays a huge role for the NBA’s international ambitions. More people in China follow American basketball than any other sport, and estimates suggest more than 300 million people in the country actively play the game. In 2015, the NBA signed a five-year exclusive partnership with tech giant and cultural enterprise Tencent: in 2018, 800 million Chinese viewers watched league programming on television or digital platforms, with more than 150 million following the league on social media.

As Simon Chadwick, a professor of sports enterprise at Salford University explained, “When China was going through its economic reform in the 1990s, the NBA was the first league to market there. They’ve spent nearly three decades and millions of dollars on establishing a market presence in China; to have that undermined by a tweet is a big issue for them.”

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Remember Yao Ming? The 7′ 6″ / 2.29m tall basketball player from Shanghai, China spent his entire NBA career with the Houston Rockets. The eight-time All-Star’s popularity boosted the NBA’s profile in China, and especially that of his team, the Houston Rockets.

Morey’s tweet was a reference to the Hong Kong Protests, which were sparked after an extradition law was proposed in February. The law would have seen residents of Hong Kong – a British colony until 1997 – subject to extradition to mainland China. This marks a significant shift from the current “one country, two systems” principle, which allows the special administrative regions of Hong Kong and Macau to run their own economic, legal and administrative systems, separate from mainland China.

The bill earned widespread criticism from businesses, lawyers, academics and journalists alike, who feared it marked an erosion of Hong Kong’s independence and more lenient approach to civil liberties. By June, the scale of protests increased as more than half a million people took to the streets. In August, thousands of protesters descended upon Hong Kong Airport for days, and by September, police had resorted to using teargas and water cannons against the demonstrators. For more, Bloomberg has a very good timeline of events.

Although the direct cause of the protests was the extradition bill, the movement has now grown to symbolise Hong Kong’s resistance against China more generally. In so doing, they have drawn the deeply-rooted tension between pro-democracy supporters and the Communist Chinese government (CCP) into the international spotlight.

State-sponsored Troll Mobs?

When Morey tweeted in support of the Hong Kong protests, it was seen as a betrayal by the CCP and the NBA’s fan base in China. Although it was only up for about an hour, Morey’s tweet was attacked by a pro-China “troll mob”, resulting in notifications flooding Morey’s phone at nearly two per second (although Twitter is banned in China, it can be accessed via virtual private networks, or VPNs).

As the Wall Street Journal reported, the Atlantic Council’s Digital Forensic Research Lab (DFRLab) discovered that, in the 12 hours following Morey’s tweet, his account was mentioned on more than 16,000 times by pro-government accounts. These were not automated bot accounts, but real people creating new accounts — solely for the purpose of flooding Twitter with pro-Chinese propaganda. In an interview with the WSJ, Ben Nimmo, a senior fellow at the DFRLab, explained that “this is a classic intimidation tactic: mass-posting at someone’s account to scream them into silence.”

The Great Firewall of China (GFW) is a term used to describe the legislative actions and technologies enforced by the Chinese government to regulate the Internet domestically.

Often, when researchers, activists and lawyers consider government action in the context of free speech, they usually point to the suppression of news and information. Take China’s Computer Information Network and Internet Security, Protection, and Management Regulations of 1997, for example. Article 5 of the Regulations states that “no individual may use the Internet to create, replicate, retrieve, or transmit” information which “incites division of the country”, “destroys the order of society” or “injures the reputation of the state”. If internet content is found to contravene those regulations or criticise the government, it can be removed and the violating account deactivated. In some instances, users behind critical online posts can be questioned by police, or even subjected to detention.

But in contrast to suppressing or removing content, this recent toll mob is an example of the CCP taking a far more active role in shaping public opinion online. In 2013, the State-run Beijing News reported that more than two million people in China are employed by the government to monitor web activity (BBC). There is also the so-called 50 Cent Army, a group of state-backed internet commenters.

Political scientists at Harvard University found that the Chinese government fabricates nearly 490 million social media comments a year: these include both favourable comments about the CCP, as well as disparaging comments and misinformation about critics of the government. While we cannot know with certainty if the troll mob against Morey was a government-initiated attack, it would be difficult to imagine otherwise.

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To celebrate the Chinese New Year, the Houston Rockets have honoured their largest international fan base by wearing a specially designed uniform with Chinese characters (NBA).

What does this mean for the Houston Rockets?

In addition to the troll mob, the official backlash from Chinese organisations and government bods followed quickly. Chinese diplomats “expressed strong dissatisfaction with the Houston Rockets, and urged the latter to correct the error and take immediate concrete measures to eliminate the adverse impact.” 

The Chinese Basketball Association, chaired by none other than Yao Ming, announced that it would suspend all cooperation with the Houston Rockets, and Chinese state-run television network CCTV said it was suspending the current broadcast arrangements for the NBA’s preseason games. CCTV also noted that “Morey and Houston Rockets need to offer a sincere apology to the Chinese public. It would be unwise for any individual to underestimate 1.4 billion Chinese people’s readiness to defend their national sovereignty and dignity.” 

Clearly, foreign companies are expected to submit to strict censorship rules if they want to do business in the People’s Republic. But what about the image the NBA has garnered as a ‘woke’ organisation? Or does the NBA feel comfortable with championing free speech and progressive civil liberties, only when it suits its financial interests?

A protester puts a picture of Commissioner Adam Silver, next to NBA star LeBron James’ photo, on a wall during a gathering in support of Daryl Morey. Photo by Reuters, via the New Straits Times

Even the apology and subsequent non-apology issued by Morey and the league attracted criticism, with supporters of Hong Kong protesters condemning the NBA’s acquiescence to Chinese pressure. Even the US Congress has become involved, with eight members writing a joint letter to expressing their disappointment in the league, saying that “it is outrageous that the Chinese Communist Party is using its economic power to suppress the speech of Americans”. Replying to this and other criticism, Commissioner Silver explained that “we were saying we regretted upsetting our fans (but) also at the same time supporting Daryl Morey’s right to express himself, right to tweet…”. He admitted that “maybe I was trying too hard to be a diplomat.”

Only time will tell if the Rockets can successfully rebound from this recent social media fiasco. In the meanwhile, it serves as an important reminder that although the internet has brought us global messaging platforms, the laws regulating those messages varies substantially from country to country.

 

featured photo © STR, Associated Press

A Blaze of Glory? The legal history behind flag burning as free speech

A Blaze of Glory? The legal history behind flag burning as free speech

Happy July 4th!  Perhaps nothing else symbolises America’s Independence Day quite like the American flag, also known as “Old Glory.” So what better day to consider the fascinating legal history which surrounds burning the American flag in protest?

This is my second blog post dedicated to exploring important United States Supreme Court cases on free speech. The first post, Regulating the Raunchycovered the basics of free speech protected by the First Amendment, together with the regulation of pornography under Miller v. California (1973). This post covers the history of flag protection in the United States, and the cultural shifts that led to Texas v. Johnson (1989).

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Unrest followed by Unity: the Revolutionary War and Civil War

Adopted on 14 June 1777, the American flag represents an incredibly wide variety of concepts, sentiments, and political positions. For many in the United States and abroad, the flag symbolizes normatively “good” things in Western culture, such as democracy, freedom, liberty, and self determination.

When considering why the American flag is such a potent symbol, it might be helpful to consider that the U.S. Civil War (1861-1865) not only revived that patriotic attachment to the flag, but expanded and intensified it, fostering a spirit of reverence and devotion (National Museum of American History). By the late 1800’s, flag protection movements had swept across the country in reaction to perceived commercial misappropriation on the one hand, and politically motivated abuse of the flag on the other. 

By 1932, each State had adopted some form of flag protection legislation, which prohibited “publicly mutilating, trampling, defacing, defiling, defying or casting contempt, either by words or by act, upon the flag” (emphasis added).

The Vietnam War was a watershed moment for political protests.

Following the Second World War, American prosperity and patriotism boomed. But by the 1960’s however, the counterculture movement began, marked by widespread revolution against established norms and conventions. In particular, the increasing unpopularity of the Vietnam war led many to question the infallibility of American foreign policy. After American bombing campaigns against North Vietnam intensified in 1965, small uprisings of peace activists and intellectuals on university campuses soon gained national prominence.

Anti-Vietnam war demonstrators burn the flag in Central Park, 1967.

1984: Counterculture against Ronald Reagan.

The Youth International Party or “Yippies” were one such offshoot of the countercultural revolutionaries of the free speech and anti-war movements of the 1960s. During the 1984 Republican National Convention in Dallas, Texas, the Yippies and like-minded groups protested against President Reagan, including his administration’s involvement in Grenada and Nicaragua.

Dozens of protesters were arrested, including Gregory Lee Johnson, whose participation during the protests involved the burning of an American flag. “We wanted to do as much as possible to puncture the whole chauvinistic, Rambo-istic atmosphere around that convention,”  Johnson later recalled.

Johnson was therefore charged with violating Texas Penal Code 42.09(a)(3), which prevented the desecration of a venerated object, including the American flag, if such action were likely to incite anger or offense in others. Johnson was initially sentenced to one year in jail, and assessed a $2,000 fine. After a series of appeals, the case was brought before the Supreme Court for final adjudication in 1989.

The decision and legal reasoning behind Texas v Johnson

In a 5-4 decision, the Supreme Court held that Johnson’s conviction for flag desecration was inconsistent with the First Amendment, which states inter alia that “Congress shall make no law abridging the freedom of speech.” Of course, the act of burning something is not written or spoken speech (also known as “pure speech”). So how can burning the flag possibly be construed as speech protected by the First Amendment?

The Court held that where the medium or conduct itself is the message, it is a special form of protected speech, known as “symbolic speech.” Put differently, symbolic speech is a nonverbal communication that takes the form of an action, in order to communicate a specific belief or position. 

To be considered symbolic speech, the action in question must be a form of expressive conduct. This requires: (1) that the individual intended to communicate a message, and (2) that the audience was likely to understand the communication.

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Joey Johnson (left) and his lawyer, William M. Kunstler – a civil rights activist known for his politically unpopular clients

The Supreme Court agreed that Johnson burned an American flag as a political demonstration that coincided the Republican party’s renomination of Ronald Reagan for President. The expressive, overtly political nature of Johnson’s action was both intentional and overwhelmingly apparent. At his trial, Johnson explained that he burned the flag because “a more powerful statement of symbolic speech, whether you agree with it or not, couldn’t have been made at that time.”

The Court found that Texas’ focus on the precise nature of Johnson’s expression violated the principle that the government may not prohibit expression simply because it disagrees with its message. This core doctrine of American free speech is not dependent on the particular mode or method in which one chooses to express an idea.

The judgment concluded with what I consider to be a particularly powerful point made by Justice Brennan:

We are fortified in today’s conclusion by our conviction that forbidding criminal punishment for conduct such as Johnson’s will not endanger the special role played by our flag or the feelings it inspires. The flag’s deservedly cherished place in our community will be strengthened, not weakened, by our holding today. Our decision is a reaffirmation of the principles of freedom and inclusiveness that the flag best reflects, and of the conviction that our toleration of criticism such as Johnson’s is a sign and source of our strength.

The Impact of the Supreme Court’s decision. 

It is important to note that the Supreme Court however did not say that the government was prohibited from regulating symbolic speech. State legislatures can indeed constrict symbolic speech, provided that the law both: (1) reflects an important interest unrelated to suppressing the actual message (i.e., the law prohibits the non-communicative aspects of the act in question) and (2) is narrowly tailored to that substantial government interest. 

Because flag protection statutes in 48 of the 50 States did not meet this test, the decision in Texas v Johnson effectively invalidated those laws.

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Gregory “Joey” Johnson holds a flag, June 1989. (AP Photo/David Canto via the Smithsonian)

Lingering controversy

Although Texas v Johnson was decided 30 years ago, public sentiment regarding the treatment of the US flag remain controversial as ever.

Shortly after his election in 2016, President Donald Trump tweeted that “Nobody should be allowed to burn the American flag – if they do, there must be consequences – perhaps loss of citizenship or year in jail!” And only two weeks ago (15 June 2019) Trump tweeted that he was “All in for Senator Steve Daines as he proposes an Amendment for a strong BAN on burning our American Flag. A no brainer!”

While it is true that burning the flag is seen by many as provocative and disrespectful, the right to do so in certain circumstances is protected by settled law. As Justice Brennan said: “We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents.” On that final note, if you happen to see an American flag on this 4th of July, spare a thought for its special role in shaping and reaffirming our rights of free speech!