The term “hate speech” is employed more and more these days, and Internet companies and government agencies are being urged to suppress it. So it might be worthwhile to consider how countries without a First Amendment treat the types of speech that are likely to fall within the ever-expanding definition of the term.
I can report on one such country, France, which may be representative of European countries generally. I worked there as an (English-language) newspaper copyeditor from 1999 to 2016. While I am not competent to describe precisely how its complex legal system works, I believe I can offer an informative overview. To do this well, many thousands of words are necessary, but I have divided them into sections and invite you to jump ahead to the next whenever you might feel bogged down.
The United States is often described as a litigious society, even as the litigious society. This view has been shared by the French at least since the publication of “Democracy in America,” in 1835, in which Alexis de Tocqueville wrote that “there is hardly a political question in the United States which does not sooner or later turn into a judicial one.”
Today, however, an American observing French public life is likely to be surprised by the frequency with which the courts are asked to punish people for things written or said. A legal tradition different from our own, to which have been added a number of specific criminal laws, has produced a regulatory system in which fines, damage payments and prison sentences (almost always suspended) are imposed for violations.
In the United States, punishment for saying or writing things that others find objectionable is sometimes imposed by private entities, such as employers, and in the past few decades many businesses, institutions and organizations have established restrictions on expression. But the means of engaging the judiciary in this enterprise are severely limited. In this the United States differs not only from France but also from many other European countries as well as the developing legal structure of the European Union.
The First Amendment to the U.S. Constitution states that “Congress shall make no law … abridging the freedom of speech, or of the press.” The Declaration of the Rights of Man and the Citizen, adopted during the French Revolution and confirmed explicitly in 1958 in the preamble to the constitution of the Fifth Republic, states: “The free communication of ideas and opinions is one of the most precious of the rights of man. Every citizen may, accordingly, speak, write, and print with freedom, but shall be responsible for such abuses of this freedom as shall be defined by law.”
It would be simplistic to say that the difference between the two systems lies primarily in the “but” clause of the latter. But even if the American amendment has inevitably been moderated by court decisions through the years, it does make every abridgment fight for its life, as it were, whereas the French formulation takes the inevitability of exceptions as a matter of course.
What infractions must a speaker or writer or editor or publisher avoid in order to stay within the law in France? Here are the basics, as discussed in the manual “Droits des journalistes et liberté d’expression” by Bernard Dapogny and Marion Dapogny:
- False news, “made in bad faith, that disturbs the public order or is capable of disturbing it.”
- Use of a false document in reporting.
- Attempt to harm the discipline or morale of the armed forces or to hinder a war effort.
- Insult. [The distinction between this and the preceding is that defamation must assert something specific, whereas insult can be merely an offensive word.]
- Attempt to harm a person’s honor or reputation.
- Defamation of or insult to the judiciary, the military services, various other public bodies including “junior high schools, high schools, universities, the Legion of Honor” as well as “local administrations, the police, hospitals, penitentiaries.”
- Defamation of or insult to persons acting in a position of public authority, including “representatives and senators, ministers and Secretaries of State” as well as “police personnel, magistrates, teachers.”
- Defamation or insult based on race, religion or belonging to an ethnic group or a nation.
- Defamation or insult based on sex, sexual orientation or handicap.
- Defamation of or insult to deceased persons, where the offense touches on the honor of the heirs or close survivors.
- Provocation to the commission of a crime which leads to the crime.
- Provocation to the commission of a crime which doesn’t lead to the crime.
- Indirect provocation (apology), that is, stating that certain crimes were justified, including “war crimes, crimes against humanity or crimes in collaboration with the enemy.”
- Provocation to hate, violence or discrimination, which could be based on a person’s “origin, sex, family situation, state of pregnancy, physical appearance, family name, state of health, handicap, genetic characteristics, morals, sexual orientation, age, opinions, politics, labor union activity, belonging or not belonging, real or supposed to a particular ethnic group, nation, race or religion.”
- Provocation to or apology for terrorism.
- Contesting “the existence of one or several crimes against humanity as defined by Article 6 of the charter of the International Military Tribunal [the Nuremberg Tribunal] annexed to the London Agreement of August 6, 1945, and which were committed by the members of an organization declared criminal in application of Article 9 of the said charter, by a person recognized as guilty of such crimes by a French jurisdiction or by an international one.” Enacted in July 1990 and called the Gayssot Law.
- Offending the president of the Republic. [This law was repealed in 2013.]
Many of these laws are seldom invoked; others are used frequently. To put flesh on the matter, I offer you a list of cases from 2013 that I put together in 2014 for an article that never found a publisher. (Sorry, but the work of assembling it was too tedious for me to undertake it again, and I think the general impression given by more recent cases would not be different.) Although details of the offensive language are frequently omitted in the news reports from which this list is compiled, a quick look will give a sense of how routine the cases are.
One thing should be mentioned first. An anti-racism law passed in July 1972, commonly called the Pleven Law, strengthened the restrictions on speech and granted to private associations dedicated to fighting racism the right to participate in the prosecution of criminal cases and to claim damages as well. Amendments to the law empowered additional categories of associations, for example, associations working “to defend the moral interests and the honor of veterans and victims of war and of those who died for France” or “to defend the memory of slaves and the honor of their descendants.” Such associations are frequently the first to blow the whistle on remarks they consider violative, and because they have the standing to file complaints even when no particular person is targeted by the contested remarks, their legal recognition is an important factor in the number of cases brought before the courts today.
Marie-Josée Roig, the mayor of Avignon, files a complaint for public insults contained in a book purporting to be fiction (“Le Monarque, son fils, son fief”) by Marie-Célie Guillaume in which a character who resembles Nicolas Sarkozy, the former president, demands a quick sexual “present” from a woman who resembles Roig.
Daniel Boyer, the mayor of Châteaubernard, files a complaint for public insults after a wave of graffiti attacking him and various acts of vandalism.
Frédéric Haziza, a Jewish journalist, files a complaint for public insult and public insult committed against a person because of his religion, after being attacked on the website of Alain Soral, a self-described anti-Zionist activist. Haziza had refused to invite Soral onto his show to discuss Soral’s book “Comprendre l’empire” because of Soral’s “clearly antisemitic” views.
A judge, Jean-Michel Gentil, files a complaint for contempt and insult against Henri Guaino, a deputy in Parliament, for having said that the judge “dishonored the [state] institutions and justice” after Sarkozy was interrogated on suspicion of abusing the weakness of a rich aged widow.
Bloc Identitaire, a nationalist group, announces its intention to file a complaint for public insult against Yann Galut, a deputy from the Cher department, for having called the members of the bloc “casseurs” (protesters who destroy property) in a Twitter message.
Rama Yade, a former secretary of state for human rights and for sports, is found guilty of defamation and insult for eight of twenty-eight contested statements posted on her blog about a political opponent, Manuel Aeschlimann, after she was challenged over her domicile status in the Hauts-de-Seine department.
Yvan Benedetti and Alexandre Gabriac, right-wing activists, file a complaint against Jean-François Carenco, the prefect of Lyon, and Albert Doutre, director of public security, for “hateful” public insults (such as “imbecilities” and “thugs”) made during the containment of a nationalist youth protest in front of the Socialist Party local headquarters.
The city of Angers files suit against a shopkeeper for public insult in the form of signs he put up to protest a proposed tax on businesses that serve clients on the sidewalk, which followed among other things a police check of whether he was serving alcohol without the proper license.
Pierre Dubois, the mayor of Roubaix, and the Human Rights League file a complaint against an unnamed man who, during the course of a heated discussion at a public meeting, suggested that the Roma (Gypsies) be sent to Auschwitz.
Sylvie Goy-Chavent, a senator of the Ain department who prepared a report on the security of meat production in France, files a complaint against a website, Internet JSSNews.com, which describes itself as a webzine of Israeli opinion, for calling her such things as “bitch” and “little shit” and writing, among other things, “Goy, she wears her name well.”
The Union of Jewish Students of France says it will file a complaint against the weekly magazine Valeurs Actuelles for provocation of racial or religious discrimination, hatred or violence. The group describes the cover of the magazine’s Sept. 26 issue, which shows a white bust of a woman representing France wearing a black Islamic veil and bearing the title “Naturalized: The Invasion They’re Hiding,” as “racist” and “hateful.” The magazine says in return that it will file a complaint against the group for calumnious denunciation, defamation and attack on freedom of expression.
The Foundation for the Memorial of the Black Slave Trade, along with the Federation of African Associations, the National Union of Overseas France, and other organizations and individual citizens file a complaint against Jean-Sebastien Vialatte, a deputy in Parliament, for public insult, defamation and incitement of racial hatred and racial discrimination, for his remarks after vandalism occurred during a celebration of the Paris Saint-Germain soccer team. He had sent a Twitter message in which he said sardonically that “the people who vandalize are surely descendants of slaves, they have excuses[.] #Taubira [the justice minister] will give them some compensation!”
The League for the Judicial Defense of Muslims files a complaint against the weekly newspaper Charlie Hebdo for its July 10 cover which had a cartoon captioned in large letters with “The Koran, it’s shit; it doesn’t stop bullets”; against the magazine Valeurs Actuelles for its Sept. 26 cover; against the website Riposte Laïque for various articles; and against Manuel Valls, the secretary of the interior, for provocation of discrimination and hate, for saying, “Within ten years we will show, we are in the process of showing, there is a will, that Islam is compatible [sic] with the Republic.”
Bruno Gilles, a senator in the Union for a Popular Movement, files a complaint against a socialist, Patrick Mennucci, for “defamation and public insults.” “He called me a racist and xenophobe,” the senator said.
France-El Djazaïr, a Franco-Algerian friendship association, announces that it will file a complaint against a police officer in the city of Alès for “insults and incitement to xenophobic and Islamophobic hatred”; the officer had put on his Facebook profile page a photo-montage representing the Algerian flag over which was written “I hate Algeria,” attached to an image of a man wiping his bottom with the flag.
Bachir Bouhmadou, adjunct general secretary of Citizen Resistance, and Ali Saab, president of the Association of Muslims of the Territory of Belfort, file a complaint against Christine Tasin, a militant with the group Republican Resistance, for videotaped comments opposing ritual Islamic butchery and criticizing Islam.
Abdellah Zekri, the president of the National Observatory Against Islamophobia, says he will file a complaint after his house was defaced with swastikas and graffiti saying “Islam Out” and “Heit [sic] Hitler.”
The National Front says it will file a complaint against Christiane Taubira, the justice minister, for public insult for having described the party’s way of thinking as “deadly and murderous” and summarizing it thus: “It’s the blacks in the branches of the trees, the Arabs in the sea, the homosexuals in the Seine, the Jews in the oven and so forth.”
A 65-year-old man is found guilty of insulting Claudine Ledoux, the mayor of Charleville-Mézières, on his website, l’Union-l’Ardennais, in a manner described by a regional newspaper as “menacing, racist and sexist,” in relation to her being made a knight in the Legion of Honor; he is ordered to pay a fine of one thousand euros and damages for mental distress of the same amount to Ledoux.
The association SOS Racisme says it will file a complaint for incitation to racial hatred against Minute, a 16-page rightist weekly, for its cover with a photo of Justice Minister Christiane Taubira, who is a native of French Guiana, and for the title “Clever Like a Monkey, Taubira Finds the Banana Again,” which combines two common French expressions; to have the banana (or the peach) means to be full of energy.
A player files a complaint for racial insult after a rough soccer game (three red cards) between the second-stringers of the Sablé and Lude clubs. A player explained: “This attacker called me a dirty white. I called him a dirty black.”
The Movement Against Racism and for the Amity of Peoples files a complaint for provocation of racial hatred against Manuel Valls, minister of the interior, for comments about the Gypsies including, “The Gypsies should stay in Romania or return there.” The case will be dismissed in December 2013.
Bob Dylan is put under formal investigation for insult and provocation of racial hatred after the Representative Council of the Croatian Community and Institutions of France files a complaint against both him and the magazine Rolling Stone, the French version of which republished an interview in which he said, “If you’ve got a slave master or the Klan in your blood, blacks can sense that. … Just like Jews can sense Nazi blood and the Serbs can sense Croatian blood.” The case will be dismissed in April 2014.
The comedian Nicolas Bedos testifies after being accused of complicity in making a public racial insult in an article in the magazine Marianne as well as on its website; among the phrases he used were “Negro bugger,” “island indolence” and “lazy natives.”
Gérard Huet, the mayor of Loudéac, is sued by the Human Rights League for comments about Gypsies he made at a meeting to discuss expenditures to renovate the area where the Gypsies were living. “They’ve stolen all our plumbing,” he says, and he later objects to the comment of another member of the city council with, “You’re defending thieves?” He sues the league in return for harassment.
The comedian Dieudonné files a defamation complaint after Alain Jakubowicz, the president of the International League Against Racism and Antisemitism, describes the “quenelle,” a gesture used by the comedian and his fans, as “corresponding to an inverted Nazi salute signifying the sodomizing of the victims of the Holocaust.” Dieudonné also says he will sue Le Monde, Le Figaro, BFMTV, France 2 and Manuel Valls, the interior minister.
The imam Hicham El Barkani files a complaint for insult after a protest described as islamophobic against the opening of a mosque in Papeete.
Some cases have greater import than those listed above, as when historians are attacked for their work.
The Columbia University historian Bernard Lewis gave an interview to Le Monde on November 16, 1993, in which he discussed the killings of Armenians by Turks during the First World War. In the course of it he said, “If one speaks of genocide, that implies that there was a deliberate policy, a decision, to systematically annihilate the Armenian nation. That is quite doubtful. Turkish documents prove a will of deportation, not of extermination.” On January 1, 1994, in response to strong objections to his remarks, he published a further explanation of his position, again in Le Monde, ending with a repetition of his main point, that “no serious proof exists of a decision and a plan by the Ottoman government aiming at exterminating the Armenian nation.” He was sued by the Forum of Armenian Associations of France and the International League Against Racism and Antisemitism on the claim that he had “gravely hurt the memory and respect of the survivors and of their families.” The civil court of Paris ruled that Lewis had “failed to meet his duty of objectivity and prudence in expressing himself without nuance on so sensitive a subject” and ordered him to pay a franc each to the two associations as well as the cost of publishing the decision. Lewis was also the defendant in other civil cases and one criminal one on the same subject, all of which were dismissed.
In 2001, the French Parliament “publicly recognized the Armenian genocide of 1915,” and in 2012 the Parliament passed a law instituting a punishment of imprisonment for one year and a fine of 45,000 euros of anyone who “contests or minimizes in an outrageous fashion” genocides recognized as such by French law, but the Constitutional Council ruled the latter law unconstitutional a month later. Both of the main candidates for president that year, Nicolas Sarkozy and François Hollande, soon announced that they would seek a new law to criminalize denial of the Armenian genocide, and in January 2017 a law took effect providing for a year of prison and a fine of 45,000 euros for those who denied, belittled or “banalized in an outrageous way” recognized genocides, crimes against humanity, and enslavement or exploitation of an enslaved person.
In 2001 Parliament also passed a law recognizing “that the trans-Atlantic trade in Negroes as well as the trade in the Indian Ocean on the one hand, and, on the other hand, the slavery perpetrated starting in the 15th Century, in the Americas and the Caribbean, in the Indian Ocean and in Europe against the Africans, Amerindians, Madagascans and Indians constitute a crime against humanity.” Four years later this law was invoked against Olivier Pétré-Grenouilleau, a professor at the University of Southern Brittany. In the course of an interview given on June 12, 2005, in relation to his book “Les traites négrières” (The Negro Slave Trades), which had won many awards including the Senate History Book Prize, Pétré-Grenouilleau rejected a comparison of the slave trades to the Jewish Holocaust: “The slave trades are not genocides. The slave trade didn’t have the goal of exterminating a people. The slave was a good that had a market value that one wanted to make work as much as possible.” An association representing people of the Caribbean, French Guiana and Réunion filed a complaint against him for denying a crime against humanity and demanded that he be “suspended from his university functions for revisionism.” In the vehement debate that ensued, Pétré-Grenouilleau was strongly supported by many prominent historians, and in February 2006, acknowledging this opposition, the association withdrew its complaint.
Shortly before the Pétré-Grenouilleau affair erupted, another “memorial” law had been passed, in January 2005, aimed generally at recognizing the suffering of those French citizens who had been repatriated from North Africa at the end of the Algerian War. This law had itself evoked controversy, by requiring that “school programs recognize in particular the positive role of the French presence overseas, notably in North Africa.” A year later the law was emended and the “positive role” removed.
I know of only three writers who have recently been given sentences that were “fermes,” as the French say, that is, that were not suspended as soon as pronounced. Vincent Reynouard is a Frenchman born in 1969 and trained as a chemical engineer who has argued that the Nazis had no plan to exterminate the Jews and that gas chambers were not used to kill people. Among the many videos he has placed on the Internet, there is one in which he expresses his admiration for Hitler; he says, “I think that Hitler was a man too good for the 20th Century, too honest, too straightforward.” A month after being arrested in Belgium, Reynouard was extradited to France in August 2010 and served seven and a half months in prison for contesting a crime against humanity. He has continued to produce writings and Internet videos, and in February 2015 he was convicted of contestation of crimes against humanity and sentenced to two years in prison. In November 2016 he was given a five-months sentence for publishing two videos in which he stated that he would offer 5,000 euros to “anyone who can show me, in free, candid and courteous debate, that the homicidal Hitlerian gas chambers are not a myth of history.” To avoid a return to prison, he is said to be living in England.
Hervé Ryssen, according to Wikipedia, has been sentenced several times for his writings about Jews on counts, among others, of racial insult, racial defamation, defamation against a group of persons because of their belonging to a certain race, and incitation to racial hatred; and Boris Le Lay, who is living in Japan, has been sentenced in absentia many times, most recently in July this year to serve 32 months in prison and to pay 31,500 euros to the groups representing the supposed victims, for his writings judged to constitute incitement to discrimination and to racial hatred and violence, and to contain public racial insults. Among the recent charges against Le Lay was one of making death threats against activists of the Human Rights League; I have not been able to determine if he was convicted of this; if he was, he appears in that instance to be an exception to the other cases discussed in this article, which involve no violence or threat thereof.
Although many speech cases involve politicians, two in particular deserve mention because they arguably played a role in the presidential election of 2007.
The first round of the previous election, in 2002, had stunned the country as Jean-Marie Le Pen, the leader of the National Front, edged out Lionel Jospin, the Socialist candidate, for a place in the second round. Le Pen’s share of the first-round vote was only 16.9 percent, but Jospin was handicapped by an abundance of rivals on the left who split the vote. Before the second round, a broad denunciatory publicity campaign to block Le Pen took place, and his opponent, Jacques Chirac, the incumbent, refused to debate him. Chirac was re-elected with 82 percent of the vote.
Before the next election, in 2007, both Le Pen and the party’s second-ranking member, Bruno Gollnisch, would be defendants in high-profile cases over things they said.
On January 7, 2005, the rightist weekly Rivarol published an interview in which Le Pen said: “In France, at least, the German occupation wasn’t particularly inhumane, even if there were slip-ups, inevitable in a country of 550,000 square kilometers.” He also related a story about a German lieutenant, “crazy with pain” after an attack on a train in which many young soldiers died, who he said would have shot up a village had the Gestapo not intervened. Various groups filed complaints, and in March an investigation was formally opened. In February 2008 he was found guilty of complicity in the contestation of crimes against humanity and complicity in apology for war crimes. In January 2009 the appeals court in Paris confirmed the verdict on the first count but threw out the war-crimes verdict. In April 2011 the Court of Cassation overturned the crimes-against-humanity verdict, and remanded the matter to the appeals court, which again found him guilty in February 2012, a judgment confirmed by the Court of Cassation in June 2013. Le Pen was sentenced to three months in prison (suspended) and assessed a fine of 10,000 euros, and the editor of Rivarol and the interviewer were fined 5,000 euros and 2,000 euros respectively. Three of the complainant groups were awarded damages of 5,000 euros each, and Rivarol was ordered to pay for the publication of the decision in Le Figaro.
In the other case, Gollnisch, a professor of Japanese language and culture at the University of Lyon who at the time was director general of the National Front (before the ascension of Marine Le Pen), was charged with contestation of crimes against humanity for responses to a journalist’s questions at a press conference in October 2004. No electronic recording was made, but he was quoted as saying: “There is no serious historian who accepts completely the conclusions of the Nuremberg Tribunal; I think that the discussion should remain free concerning the drama of the concentration camps. The number of deaths, the manner in which the people died —historians have the right to discuss. … I don’t deny that there were homicidal gas chambers, but the discussion should remain free.” In 2006, before the verdict was rendered, he was suspended from his university post for five years.
During the trial Gollnisch was questioned intensively for hours one day in November 2006 over his true beliefs on the matter, and the attorney examining him, Alain Jakubowicz, representing the International League Against Racism and Antisemitism, said he would withdraw from the case if Gollnisch would only admit “that the organized extermination of the Jews of Europe by the Nazi regime during the Second World War constitute an incontestable crime against humanity perpetrated notably by the use of gas chambers.” According to Le Monde, Gollnisch appeared surprised and hesitated before giving an answer that might alienate the “hard fringe of his movement.” Gollnisch replied, “Completely.” Asked to repeat his answer, he said: “My answer is affirmative.” He was convicted in January 2007, three months before the first round of the presidential election, and sentenced to serve three months in prison (suspended) and pay a fine of 5,000 euros. An appeals court in February 2008 confirmed the conviction and added fines totaling 39,000 euros to be paid to nine associations devoted to fighting racism or representing people deported from France during World War Two. But in June 2009 the Court of Cassation, judging that his contradictory remarks as presented to the court did not constitute contestation, overturned the verdict without possibility of retrial.
However these cases might be viewed in relation to freedom of speech, they also merit attention from a purely political point of view. In the 2002 election, Jean-Marie Le Pen scored an upset in the first round; in 2007, Nicolas Sarkozy won the presidency by, in the view of many commentators, “borrowing the discourse” and luring the voters of Le Pen’s party. In between, both Le Pen and his righthand man were put on trial, to the accompaniment of much public commentary, on charges that suggested their approbation of Nazi atrocities. Under such circumstances, borrowing and luring may be much easier than would otherwise be the case.
In September 2013 the International League Against Racism and Antisemitism sought an injunction from a court in Bobigny to order the excision of passages from five books republished by Kontre Kulture, a publishing enterprise whose publication director is Alain Soral. David-Olivier Kaminski, an attorney for the league, described Soral as someone known as a “vector of hate” and characterized the re-editions as a “provocation, with the purpose of arousing tensions.” The league also asked for 20,000 euros in damages for each of the five books.
In November the court ordered the withdrawal from sale of one of the books, “L’Anthologie des propos contre les juifs, le judaïsme et le sionisme” by Paul-Eric Blanrue, which had originally been published by another publisher in 2007, and the removal of certain passages from the four others, all of which were reprints of books published long ago: “La France juive” by Edouard Drumont, “Le salut par les juifs” by Léon Bloy, “Le juif international” by Henry Ford, et “La controverse de Sion” by Douglas Reed. The court judged that the works constituted “insult toward a group of persons because of their belonging to a specific religion,” “negation of crimes against humanity,” and “provocation of racial hatred.” Kontre Kulture and Soral were also ordered to pay 8,000 euros each to the league as well as a part of its legal expenses. In December 2014 a court overturned the previous ruling on the “Anthologie” and it was again allowed to be sold.
The media reaction focused principally on the book by Léon Bloy. Bloy’s great-grandchild, Alexis Galpérine, reminded readers in Le Figaro that Bloy was a “philosemite” and that “Le salut par les juifs” had been recommended as a “book against antisemitism” by Franz Kafka. Pierre Glaudes, a professor at the Sorbonne, wrote in the weekly magazine Le Nouvel Observateur: “This decision of justice arouses astonishment and disquiet by attacking a literary work that is 122 years old and has been republished several times without having attracted lightning strikes by justice. … This condemnation sets a dangerous precedent. Why not censor ‘The Merchant of Venice’ by Shakespeare, ‘Gobseck’ by Balzac or ‘Money’ by Zola for their antisemitic statements?”
The case of the comedian Dieudonné M’bala M’bala merits notice particularly for the legal manner in which the performance of his show “The Wall” in Nantes was forbidden in January 2014.
Dieudonné, the son of a Cameroonian man and a French woman, performed for several years early in his career with a Jewish partner, and their sketches often made fun of racism. Eventually he came to hold Jews responsible in large part for the slave trade, he expressed resentment at the attention given to the Holocaust in comparison with that given to the slavery, and he came to regard Jews not as fellow victims of prejudice but instead as important members of a power structure in which people of the Third World and of Third World origin are kept down. His new acts were sharply criticized, and he responded with provocations such as including Robert Faurisson, notorious as a denier of the Holocaust and gas chambers, in his acts. Dieudonné was found guilty of racial insult or defamation on numerous occasions, for example, for saying that a television host financed the Israeli Army, “which doesn’t hesitate to kill Palestinian children”; for characterizing Holocaust remembrance as “memorial pornography”; for stating that the directors of a pro-Israeli website were trying to paint him as an antisemite and “son of Hitler”; for describing the International League Against Racism and Antisemitism as one of the “mafia-like associations that organize censorship, … that deny all concepts of racism except that concerning the Jews. In fact, they are nothing but Israeli agents.”
Largely excluded from television and other standard venues, he has nonetheless maintained an enthusiastic and politically and racially mixed following through his stage shows and videos. In January 2014 his stage show “The Wall” was challenged by the government as a threat to public order and to the dignity of the human person. Its performance in Nantes was banned by the prefecture of the Loire-Atlantic region, which judged that it contained antisemitic remarks that would incite racial hatred and constitute an apology for discriminations, persecutions and exterminations perpetrated in the course of the Second World War. The ban was lifted on the day of the show by the region’s administrative tribunal, which held that the show “could not be regarded as having as its essential purpose an affront at human dignity,” but the tribunal’s ruling was overturned and the ban reinstated later the same day by a judge of the Council of State, the highest court in the administrative-law system, after an urgent request by Interior Minister Manuel Valls.
French people in general seem content with the way free speech questions are handled. If in private they will occasionally murmur that “one can’t say anything anymore,” in public there is very little disagreement over the necessity of punishing infractions involving remarks characterized as racist or antisemitic or “negationist.” Prominent cases, such as the many brought against Jean-Marie Le Pen, are approved, explicitly or implicitly, by the vast majority of commentators in the press and on the radio and television. Even publications that push the limits of public tolerance in other ways — for example, with crude or even violently obscene and sacrilegious writings and cartoons — do not defend the targets of anti-racism or anti-contestation laws on general free-speech grounds; quite the contrary.
There is no high-profile organization or figure that publicly espouses the famous words that Voltaire apparently never really said, “I disapprove of what you say, but I will defend to the death your right to say it.” Over all the attitude is closer to that attributed to the revolutionary Saint-Just, “No liberty for the enemies of liberty.” The slogan of the International League Against Racism and Antisemitism, one of the organizations most active in denouncing speech offenders, is “Racism is not an opinion but a criminal offense.” Even a group such as Reporters Without Borders, which works to further the freedom of the press throughout the world, generally makes no objection to the laws discussed above, although it did oppose the one criminalizing the denial of legally recognized genocides. In an interview, Antoine Héry, in charge of the group’s activities in the European Union and the Balkans, explained to me: “I think that the problem in France is that there really are racist statements — many. … This climate exists; it isn’t a phantasm. There is, from this point of view, a necessity to regulate a little the domain of speech, because there are abuses. I don’t think that in the United States one finds this sort of mass behavior — because it is massive, it isn’t just one guy in his corner doing his thing.”
There have been dissident voices on the subject of the criminalization of so-called negationism and other “memorial laws.” One of the most prominent is a group called Liberté pour l’Histoire, which was formed in 2005 in response to what seemed about to become a wave of such laws. In a public appeal signed by nineteen historians in December of that year and later by hundreds more, it stated that “in a free state, it is not the business of the parliament nor of the judicial authority to define historical truth” and called for “the abrogation of these legislative measures unworthy of a democratic regime.” But even this unambiguous stand is not so solid as it might appear. In 2010, at the International Congress of Historical Sciences in Amsterdam, the group’s president, Pierre Nora, spoke of the Gayssot Law and stated: “It is now twenty years since the law was voted, and even if we continue to regret it intellectually speaking, the association Liberté pour l’Histoire does not campaign for its suppression and does not wish to challenge it for the simple reason that this legal and official challenge would only be seen in the public eye as authorizing and even encouraging the denial of the Jewish genocide.” There could hardly be a better illustration of the French ambivalence on the matter than this.
This ambivalence derives from an evident fact: the characteristics of the system that make it vicious from a free-speech perspective — the vagueness and elasticity of the definitions of the crimes, the politically selective application of the laws, the tendency of the trials to become examinations of the defendants’ thoughts and beliefs rather than merely of their public statements — are virtues for a system of political repression, and in France there is a general consensus that the “extreme right” needs to be kept down and that expressions of “racism” and “antisemitism” deserve to be squelched. While there are pockets of dissidence — such as the websites Polémia and Boulevard Voltaire, the independent rightist station Radio Courtoisie and the Internet television channel TV Libertés — the assumption remains widespread that anyone arguing that freedom should extend to such speech must have evil motives.
The legal procedures through which speech is restricted do sometimes come under criticism. For instance, the ban on Dieudonné’s show “The Wall” was widely criticized because it imposed a prior restraint, seen as equivalent to censorship in a way that punishing the performer afterward would not be. Jack Lang, who was minister of culture in the Mitterrand administration, said that the Council of State had opened a Pandora’s box of potential abuses; he objected as well to basing the decision on a vague principle of “human dignity” and pointed out that the risk to public order was not credible. Michel Tubiana, a former president of the Human Rights League, which also objected to the ban, told me in an interview that Dieudonné should have been allowed to do his show and then he could have been prosecuted in the normal way. On the league’s website, one reads: “Clearly it is necessary to let nothing pass, to systematically bring prosecutions against the delinquent, to denounce systematically his crimes.”
For the future, there is pressure to increase the surveillance, particularly of the Internet. At its annual dinners, which are grand affairs similar to those of the American Israel Public Affairs Committee in the United States, the Representative Council of Jewish Institutions of France presses the attending government officials hard for ever more stringent restrictions, especially on Internet communications. In March 2016, for example, its president, Roger Cukierman, urged that the state of emergency “should also apply to the Internet,” and this year its new president, Francis Kalifat, called for “zero tolerance” for bloggers “of hateful content.”
In the meantime, France, like the other countries of the European Union, is a party to the Council Framework Decision “on combating certain forms and expressions of racism and xenophobia by means of criminal law,” adopted unanimously by the ministers in the Council of the European Union in November 2008. In a report in January 2014 on the implementation of this decision, the European Commission stated: “Member States must ensure that the following intentional conduct is punishable when directed against a group of persons or a member of such a group defined by reference to race, colour, religion, descent or national or ethnic origin:
- publicly inciting to violence or hatred, including by public dissemination or distribution of tracts, pictures or other material;
- publicly condoning, denying or grossly trivialising
- crimes of genocide, crimes against humanity and war crimes as defined in Articles 6, 7 and 8 of the Statute of the International Criminal Court; or
- the crimes defined in Article 6 of the Charter of the International Military Tribunal appended to the London Agreement of 8 August 1945, when the conduct is carried out in a manner likely to incite violence or hatred against such a group or one or more of its members.”
And France does its part, by continuing to reinforce its laws. On August 5 of this year it made illegal any “nonpublic” insult or defamation (as, for example, made during a meeting in a company’s offices) “made toward a person or group of persons because of their origin or belonging or not belonging, real or supposed, to an ethnic group, a nation, a putative race or a particular religion; … [or] because of their sex, their sexual orientation or gender identity, or their handicap.”
The law provides for fines of 1,500 euros initially and 3,000 euros for recidivists. It also gives a judge the option of augmenting the punishment with a compulsory course in citizenship.
Lawrence G. Proulx is a retired copy editor who worked for more than 30 years at the Washington Times, Washington Post, International Herald Tribune and International New York Times.