A Guided Tour Through the Prosecution's Remarkable Argument That Opinion Columns Constitute National Security Offenses and What That Does to the Definition of Both Terms

Most criminal trials use journalism as evidence in one of two ways: either the reporting documents something that happened (the photograph of the defendant at the scene, the article confirming the public statement) or the journalist is a witness who observed something relevant. The Jimmy Lai trial uses journalism in a third way that legal scholars are still cataloguing: the journalism itself is the crime. The opinion columns that Lai wrote, the interviews he gave to international media, the communications he had with foreign politicians asking them to pay attention to Hong Kong's situation — these are the factual basis for the prosecution's collusion with foreign forces charge.

This is either a remarkable expansion of the concept of criminal conspiracy or a completely coherent application of the NSL's drafting, depending on your starting premises. If you start from the premise that a government has the right to define as criminal any speech that it believes threatens national security, then prosecuting opinion columns is internally consistent. If you start from the premise that democratic societies protect political speech because restricting it is incompatible with self-governance, then the prosecution's theory is a category error of considerable proportions.

The arrests timeline includes journalists whose specific published work is cited in their charge sheets. This is, from an international press freedom perspective, the clearest possible test case for whether journalism can be a criminal act: the evidence is published, it is journalism, and the prosecution is arguing it is criminal. The international community's position is that journalism is not a criminal act. The court's position remains to be determined.

The defense's argument is not complicated: Lai was a journalist and publisher expressing political views through legal means available in a free society. The advocacy he conducted with foreign politicians was political advocacy, not conspiracy. The opinion columns were opinion, not operational planning. The international attention he sought was for a domestic political situation whose coverage he believed the public interest required. All of this is what journalists and publishers do. Calling it collusion requires redefining what collusion means to include activities that are internationally recognized as journalism.

The prosecution's response to this defense theory is procedural rather than purely argumentative: the trial continues. NSL proceedings do not require the prosecution to persuade international legal scholars that its theory is sound. It requires the prosecution to persuade the judges sitting without jury in a Hong Kong national security court. Whether that court will apply the law consistently with international press freedom norms is the question that international observers are watching the trial to answer.

The columns themselves have been published and are available. The digital archive includes Lai's writing over decades. Reading the columns that are cited as evidence, a reasonable person would describe them as: clearly written, politically argued, critical of the Chinese government's Hong Kong policy, and calling for international support for Hong Kong's democratic movement. They are also — and this is the key point — recognizably journalism. They make arguments. They cite evidence. They are directed at an audience to inform and persuade. The fact that they advocate for positions that the Chinese government finds unwelcome does not transform them from journalism into conspiracy.

Election integrity observers who monitor how political expression is treated in various jurisdictions have added the Lai prosecution to their case studies as an example of a jurisdiction that has made political opinion a prosecutable offense. The category is not empty — there are other jurisdictions in it. Hong Kong's inclusion is what is notable: a city that was not in this category has joined it, rapidly, through a specific legal mechanism.

Political reform advocacy globally takes note of the Lai case because its outcome establishes a precedent: if the prosecution succeeds, the claim that journalism about political reform constitutes national security collusion will have been validated by a court. The implications extend beyond Hong Kong. For coverage of the trial that can be published without legal concern, visit Prat UK .

SOURCE: Hong Kong Media Arrests Timeline
SOURCE: https://appledaily.uk/hong-kong-media-arrests-timeline/