Is France Charlie?
France has been a crucible for radical philosophy since the eighteenth century, and was the pre-eminent centre for the arts in the nineteenth and twentieth. It was France to which writers like James Joyce, Henry Miller and Vladimir Nabokov fled to publish novels now regarded as masterpieces but which their contemporaries in England and America considered too shocking for publication. The French still appreciate art and the country still attracts artists, but it is no longer the safe haven for boundary-pushing ideas it once was. Indeed there is a strong case for saying France is now the most censorious country in the developed world.
Since 1972, the French penal code has criminalised “incitement to discrimination, hate or violence towards a person or group of persons by reason of their origin or their belonging to an ethnicity, nation, race or determined religion.” Canada has the strictest hate speech laws in the English-speaking world, but even it provides a defence for “good faith” comments on religious subjects. Religion is given a lower status under the law because, unlike race or sexual orientation, it is not inherent but a belief structure to which one subscribes. The banning of incitement based on religion in France is doubly ironic, given laïcité (secularism)—in addition to free expression—is protected under the country’s Constitution. France has banned the displaying of religious symbols in public institutions, but frequently prosecutes its citizens for supposed religious intolerance.
Michel Houellebecq, France’s most successful literary export, was tried for describing Islam as “the dumbest religion” following the release of his 2001 novel Platform. He escaped conviction, but Eric Zemmour, author of Le Suicide Français was convicted for saying that Muslims ought to “choose between Islam and France,” and for referring to the Islamisation of France as an “invasion.” The Paris Court of Appeal ruled this was an “implicit incitement to discrimination”, which was recently reaffirmed in the Cour de cassation, France’s highest court for private and criminal law matters.
The laws have not only affected figures associated with the right. Firebrand comedian and anti-Zionist Dieudonné was convicted after inviting a notorious holocaust denier onstage in 2008, and for making anti-Semitic comments about a French journalist during a performance in 2015. Also in 2015, the Cour de cassation upheld the convictions of 12 BDS (Boycott, Divestment and Sanctions) activists for wearing t-shirts and distributing materials stating “Support Palestine, Boycott Israel.” The same group was recently targeted by US President Donald Trump through an executive order, a move which has outraged large sections of the American left.
Then there is the case of the satirical magazine Charlie Hebdo. In an article published in Le Monde the day after the magazine was attacked resulting in the death of 12 people, the paper analyses the 48 times the magazine has been prosecuted, nine of which resulted in convictions. According to the piece: “The magazine has managed to succeed in three quarters of its cases, thanks especially to French legislation which is highly protective vis-à-vis freedoms of the press.” By contrast, in a piece about the BDS case, the paper says: “The Court de cassation’s judgment makes France one of the few countries to prohibit the actions of the pro-Palestine movement,” and includes quotes from several lawyers denouncing the decision as a “regression.”
Some of the actions against Charle Hebdo resemble defamation suits in England. But many are based purely on insult. The magazine has been convicted for depicting a minister as a Nazi, a member of the National Front as a lap dog, and for calling Pope John Paul II the “pape de merde.” Defamation requires proof that a false statement caused an individual material harm, and has been actionable in England for almost as long as the common law has existed. Actions for insulting an individual or group, however, were never cognisant to British law until 1986, when the Public Order Act criminalised “threatening, abusive or insulting words or behaviour.” A campaign led by actor Rowan Atkinson and activist Peter Tatchell led to the removal of the word “insulting”, restoring the law to roughly its position before the legislative intervention.
The common law frowns upon proscribing offence for several reasons. First, insulting opinions are questions of individual conscience and cannot be proved right or wrong. They are therefore not suitable for state regulation. Second, speech is merely the externalisation of thought. Laws cannot shift culture or change consciousness, and suppressing speech does not suppress thought but merely silences it, leaving it to fester or proliferate unchallenged underground. As William Lloyd Prosser, a celebrated American legal scholar said:
There is still, in this country at least, such a thing as liberty to express an unflattering opinion of another, however wounding it may be to his feelings; and in the interest not only of freedom of speech but also of avoidance of other more dangerous conduct, it is still very desirable that some safety valve be left through which irascible tempers may blow off relatively harmless steam.
Third, statements which are at least partially true are the most likely to offend. To ban insult is therefore to elevate feelings to a higher legal plane than truth. The fourth is the chilling effect such laws cause. Even the most anodyne opinion will offend somebody somewhere. To proscribe offence is to render everything—especially something contentious or boundary pushing—amenable to a criminal penalty. As Rowan Atkinson said during the Public Order Act campaign: “The clear problem of the outlawing of insult is that too many things can be interpreted as such. Criticism, ridicule, sarcasm, merely stating an alternative point of view to the orthodoxy, can be interpreted as insult.”
It is curious that England—a country with no codified constitution—repealed its principal insult law while they have continued to proliferate across the Channel, despite Article 10 of the French Constitution stating: “No one should be worried about their opinions, even religious, assuming their manifestation does not trouble the public order established by law.” This demonstrates that rights, even if enshrined in a constitution, will be stripped of all meaning in a culture which does not believe in them. As Albert Einstein said: “Laws alone cannot secure freedom of expression; in order that every man may present his views without penalty, there must be a spirit of tolerance in the entire population.”
Today marks the fifth anniversary of the Charlie Hebdo massacre. Many French citizens will assemble to express that they are toujours (still) Charlie. And no doubt they are. But with laws that penalise artists and journalists for expressing honestly held beliefs, and with the Parliament set to pass new laws limiting speech in the online sphere, we may ask whether the spirit of tolerance for controversial ideas exists in the population at large, whether France is Charlie. If not, it means the loss of the most important sanctuary for artists and thinkers of modern times. That would be a loss for all humanity.
This essay originally appeared on Areo.