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Yvonne Abraham

Beijing lesson unlearned

By Yvonne Abraham
Globe Columnist / June 7, 2009
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You've heard a lot about Tiananmen Square lately, since Thursday was the 20th anniversary of the Chinese government's brutal crackdown on prodemocracy demonstrators.

What you might not have heard about is how a leader of that crushed movement is trying to put the boot into a pillar of democracy right here in Boston.

Ling Chai, sometimes called commander in chief of the 1989 demonstrations, now lives in Massachusetts and heads a successful software company, Jenzabar Inc. In the years since she fled China, she has spoken passionately about the importance of free speech.

And yet Jenzabar is using the courts to bring two filmmakers to near-ruin because their website contains excerpts from, and links to, articles critical of Chai and her firm.

First, some background. In the years since she arrived in the United States, debate has surrounded Chai. Some of her contemporaries, as well as some historians, say that Chai and other student leaders made mistakes in the last hours of the standoff with the Chinese government and that their decision to remain in Tiananmen Square led to more deaths. It's an allegation bolstered by Chai's own words, according to a translation of an interview she gave in those chaotic final days.

The interview is included in an award-winning documentary, "The Gate of Heavenly Peace.'' In it, Chai says: "How can I tell [our followers] that we actually are hoping for bloodshed, the moment when the government is ready to butcher the people brazenly. Only when the square is awash in blood will the people of China open their eyes.''

Chai has long said that comment was mistranslated and taken out of context, and some other student leaders support her view.

Carma Hinton and Richard Gordon stand by their film, and other Chinese leaders support them. They also maintain a website, with updates on Chai that refer to stories and columns on Jenzabar, some unflattering, including one published in the Globe.

Jenzabar sued the filmmakers' company, Long Bow Films, for defamation - just for directing readers to the articles Chai and her company say are offensive and inaccurate. A Suffolk Superior Court judge wisely threw the defamation charge out. The First Amendment guarantees the people's right to say - and cite - even things you don't like, after all.

But the case has dragged on because Jenzabar is also contending that just by using the company's name as a tag on its website, Long Bow is guilty of trademark infringement - that somebody googling Jenzabar might land on the Long Bow site and get confused.

That's bosh.

"The idea that somebody would be confused is so remote as to not pass the giggle test,'' said Harvey Silverglate, a lawyer who specializes in First Amendment cases. Even the judge said Jenzabar is unlikely to win. And yet Chai perseveres.

Why? There is more than one way to skin free speech. Jenzabar has buckets of money. Hinton and Gordon don't. Chai's suit has cost them 70 grand so far. Even though she will probably lose the court battle, she could win the war by shutting Long Bow down.

"It has drained a lot of our resources,'' Hinton said. "We may be driven into bankruptcy before we see our day in court.''

There's more. Last week, Jenzabar attorneys asked a judge to prevent Long Bow from updating their website on the continuing court case. On Thursday, the judge knocked them down, saying "fear of bad publicity'' isn't grounds for a gag order.

Lawyers for both sides declined comment.

"Long Bow has gratuitously maligned Ling Chai for decades, '' said Rob Gray, spokesman for Jenzabar. "And now that she has the resources to fight back, they don't like it.''

But the problem isn't that Chai is fighting back. It's how she's fighting back. She's using the justice system to attack the very freedoms for which her fellow students gave their lives.

Yvonne Abraham is a Globe columnist. Her e-mail address is abraham@globe.com.