France has been a crucible of 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 the United States 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, France is perhaps 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 than race or sexual orientation because it is not inherent, but a belief structure to which one subscribes. The French ban on incitement based on religion is doubly ironic, given that laïcité (secularism) is protected under the country’s constitution. France has outlawed the display 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” in 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 that this was an “implicit incitement to discrimination”—a judgement recently reaffirmed in the cour de cassation, France’s highest criminal and civil appeal court.
These laws have not only affected figures associated with the right. Firebrand comedian and anti-Zionist Dieudonné was convicted for inviting a notorious holocaust denier on stage 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 twelve BDS activists for wearing T-shirts and distributing materials bearing the slogan Support Palestine, Boycott Israel. The same group was recently targeted by Donald Trump through an executive order, a move which has outraged free speech advocates and large sections of the American left.
Then there is the case of the satirical magazine Charlie Hebdo. An article published in Le Monde the day after attackers stormed the magazine and gunned down twelve people analyses the magazine’s forty-eight prosecutions, nine of which resulted in convictions, commenting: “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 comments: “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 Charlie Hebdo resemble English defamation suits. But many were based purely on insult. The magazine has been convicted for depicting a minister as a Nazi and 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 common law has existed. Actions for insulting an individual or group, however, were not 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 unsuitable for state regulation. Second, speech is merely the externalisation of thought. Laws cannot shift culture or alter consciousness, and suppressing speech does not suppress thought but merely silences it, leaving it to fester or proliferate unchallenged underground. As celebrated American legal scholar William Lloyd Prosser puts it:
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 that are at least partially true are the most likely to offend. Banning insult therefore elevates feelings to a higher legal plane than truth. Fourth, such laws tend to have a chilling effect. Even the most anodyne opinion will offend somebody somewhere. To proscribe offence is to render everything—especially everything contentious or boundary pushing—amenable to criminal penalty. As Rowan Atkinson put it 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 or bill of rights—repealed its principal insult law while such laws continue to proliferate in France, Article 10 of whose constitution states: “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, can be stripped of all meaning in a culture that does not believe in them. As Albert Einstein puts it: “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 parliament set to pass new laws limiting online speech, we may ask whether the spirit of tolerance for controversial ideas exists in the population at large. Is France Charlie? If not, artists and thinkers have lost their most important sanctuary of modern times. That would be a tragedy for humanity.