In truth, all liberal democracies forbid some speech. Even in the First Amendment-oriented United States, CIA employees don’t have the right to divulge state secrets in the public square. False statements of fact that harm an individual or a business can be punished under federal and state laws. And stoking anger in a crowd and then pointing them at a passerby is illegal incitement if it leads violence, and may incur an extra penalty under existing hate crimes provisions if there is a racist element to the speech.
France’s speech-restrictive provisions go further than American ones. Within a week of the Charlie Hebdo massacre, more than 35 people were detained for statements contravening the law against “apology” of terrorism. (There were an additional 17 people arrested under provisions against “verbal threats of terrorist acts.”) Examples include a man who said to police officers, “There should be more Kouachis. I hope you’ll be the next ones…You are a godsend for the terrorists.” Most infamously, Dieudonné M’bala M’bala, the controversial performer who has in the past been convicted for anti-Semitic hate speech, was arrested for a Facebook post in which he said he felt like Charlie Coulibaly. One can debate whether scooping up these people was consistent with the principles espoused by Charlie Hebdo supporters (or even whether it was politically wise), but these statements are not what Americans traditionally think of as hate speech.
Hate speech laws restrict statements made against people because of their group identities. Though it may seem ironic, France’s 1972 anti-racism provisions were embedded in its 1881 freedom of the press law. According to a judge I interviewed at the French high court, this was a conscious choice that created procedural hurdles discouraging frivolous lawsuits. As an offsetting measure, the law also allows recognized anti-racist associations to initiate criminal proceedings even when the public prosecutor declines to do so.
How often do French courts convict people under these laws, and what have the penalties been? According to official statistics, in 2011 there were 359 convictions that involved hate speech, with the vast majority (293) involving public insult toward an individual, such as calling someone a “dirty Jew.” Most penalties involved fines or suspended sentences, with 11 cases resulting in jail terms. My research-in-progress shows that among all decisions rendered by France’s highest court between 1972 and 2012, 58 percent have tilted toward speech restrictions while 42 percent upheld free speech. Outcomes have thus been more balanced than one-sided.
The specific wording of French law forbids “insult,” “defamation,” or “provocation to discrimination, hatred or violence”…“toward a person or a group of persons because of their origin or their belonging or non-belonging to an ethnic group, a nation, a race, or a determined religion.” The wording here is critical, as is the way in which courts have interpreted the law over their 40-plus years of rulings. For example, insult is an infraction that is not measured by the subjective pain felt by the target. Saying “that really hurt my feelings” has no legal weight in the courts. Of course, there is an element of judgment involved, but there is no such thing as a right not to be offended.
Perhaps the most important legal aspect is the focus on real-world people and groups, rather than on ideas or doctrines. French citizens are perfectly free to challenge or blaspheme religious ideas, symbols, practices, and even leaders. Obnoxious, insulting, highly offensive speech is protected speech. Charlie Hebdo has been sued not only for its depictions of Muhammad, but also for caricatures of the pope. In fact, Catholic groups have sued it for anti-religious speech more often than Muslim ones. Charlie Hebdo prevailed in all of these cases, except for one (which was initiated by the Catholics).
To give another example, former French cinema star Brigitte Bardot is now an avid animal rights activist who has passionately denounced the Islamic practice of ritual slaughter without prior stunning. She has been convicted for hate speech for her statements related to this issue. At first glance, this may seem a ridiculous restriction of free speech. Yet courts have not penalized her for deriding Islamic practices, but for defaming and for provoking hatred against Muslims themselves. In one case, she was convicted for saying “They slit the throats of women, children, our monks, our administrators, our tourists and our sheep, they will slit our throats one day and we will have earned it.” Disagreeable language is protected in France, but characterizing a group as a mortal danger is not.
Over time, France has added two important extensions to its legal arsenal. In 1990, it forbade contesting the Holocaust, and in 2004 it added protections against insult, defamation, or provocation based on sex, sexual orientation, or handicap. These developments raise legitimate concerns about increasing restrictions on objectionable speech. Yet the pace of change hardly justifies hand-wringing about a rapidly shrinking sphere of vigorous public discussion.
French laws against hate speech are not perfect. They are rightly the subject of a healthy debate in the shadow of Charlie Hebdo. But they are not the straw men that some commentators make them out to be. Our marketplace of ideas would be enriched by fewer one-sided proclamations about free speech, and a greater number of informed discussions about how countries like France pursue the difficult balance between protecting free speech and restricting hate speech.
Erik Bleich is a Professor of Political Science at Middlebury College. His most recent book is The Freedom to Be Racist? How the United States and Europe Struggle to Preserve Freedom and Combat Racism(Oxford University Press, 2011).
Note: “for statements forbidding “apology” of terrorism.” was corrected as ” for statements contravening the law against “apology” of terrorism”