Clamping down on speech

On Sunday evening Jan. 11 in a town outside Lyon, a 28-year-old man shouted at a police patrol: “They killed Charlie and I had a good laugh. … If I didn’t have a father or mother, I would train in Syria.”

Police in France arrested the man, and by the following Wednesday, three days later, a court had sentenced him to six months in prison for advocacy for terrorism—a crime under French law. His lawyer argued that the man, whose name was not released, was mentally handicapped.

In Nice, police arrested an 18-year-old man under the same statute for shouting at police, “100 percent Kouachi,” a reference to the Kouachi brothers who attacked the Charlie Hebdo offices and killed 12. Elsewhere in Nice they detained an 8-year-old who said, “The French must be killed. I am with the terrorists.” The family’s lawyer said France was showing a “collective hysteria,” according to the Associated Press. “An 8-year-old does not belong in a police station.”

French officials are investigating about 100 people for making comments in support of terrorism and fast-tracking cases to charging and sentencing in a way few Americans ever see. Under a French law enacted last fall, incitement or advocacy of terrorism (l’apologie du terrorisme) is a crime punishable by up to five years in prison and a 75,000 euro fine. The penalties are higher for comments made online.

“We must be unyielding before advocacy for terrorism, and those who engage in it,” said French President François Hollande.

It’s also a criminal offense in France to incite “discrimination, hatred, or violence toward a person or group of persons because of their origin or belonging to a particular ethnicity, nation, race, or religion.”

France does not have the same assumptions about free speech as the United States, said Eric Rassbach, deputy general counsel at the Becket Fund for Religious Liberty. Rassbach has handled cases at the European Court of Human Rights. “They’re going to be clamping down,” he said.

That France’s efforts to prevent more terror attacks will curtail speech otherwise protected concerns U.S. constitutional lawyers as well as groups like Amnesty International. But the crackdown on speech highlights differences in the American and French approach.

U.S. Supreme Court justices have argued speech protections exist for “the thought that we hate,” and that bad speech should be met with more speech. In the United States, inflammatory speech is protected as long as it is not incitement to imminent violence. “[T]he fitting remedy for evil counsels is good ones,” wrote Justice Louis Brandeis in the landmark 1927 ruling Whitney v. California. “Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women.”

In late January the anti-Semitic French comedian Dieudonné M’bala M’bala went on trial in Paris for allegedly saying it was “too bad” that “gas chambers” didn’t exist for French Jewish journalist Patrick Cohen. M’bala has been convicted seven times for anti-Semitic comments.

M’bala was arrested earlier in January for a Facebook post in support of “Charlie Coulibaly,” a combination of the satirical newspaper Charlie Hebdo and Amedy Coulibaly, the terrorist who killed four hostages at a kosher grocery store in Paris as well as a French police officer.

“That would never result in criminal charges in the United States,” said Rassbach, referring to M’bala’s Facebook post. “In the U.S., you have to incite someone to imminent violence, like, ‘Let’s burn down the movie theater right now,’” in order to be charged for speech. (Rassbach does think some of what M’bala has said in the past may count as incitement.)

After the attacks in France, USA Today published an editorial from a London-based radical imam, Anjem Choudary, who said the Charlie victims provoked Muslims and more or less reaped what they sowed. The editorial board defended its decision to run the imam’s piece, saying, “The long contest against extremist Islam will not be won by donning blindfolds.”

“To me, it’s an open question whether that [column] would be allowed to be printed in France,” Rassbach said.

Not only does France have the power to curtail inflammatory speech, but it also curtails religious expression that is permitted in the United States. In the French Republic’s founding years, France established its secularist principle of laïcité, which was supposed to promote the separation of church and state. Today that principle expresses itself in a society which bans outward religious symbols like headscarves at schools.

Both France and Germany also have certain speech limits rooted partly in World War II and the Holocaust. Both countries forbid displays of Nazi symbols and both have criminalized Holocaust denial. British speech laws are freer than those two countries, though not as liberal as the U.S. laws.

International human rights treaties offer a clearer interpretation of the freedom of speech that the French could follow. Those treaties distinguish between “incitement” and “provocation,” said Rassbach. Provocation is generally protected under international human rights treaties, while incitement isn’t. Charlie Hebdo cartoons, falling under the former category, have been protected legally in French courts: While they are provocative toward Muslims, they don’t incite attacks against Muslims. But calls to burn a synagogue would not be protected, which Rassbach thinks is the correct limitation on speech.

“I think it’s clear in human rights law, what France can do and what France shouldn’t be doing,” said Rassbach. “Would the French government agree with me? Probably not. They’re going to take as much power as they can. They’re going to call things incitement that, if you’re really familiar with that area of the law, are not incitement. It’s provocation.”

Rassbach continued: “They’re thinking, ‘We’ve got to shut this down politically. … We kind of got caught not doing a very good job stopping these terrorists.’”

Part of the challenge in stopping terrorists is authorities have to guess who is going to commit violence before they do it. Speech is one clue, but Rassbach thinks the French government’s power to police speech should be clearly delineated: only in threats of violence.

France’s laws are vague: What is “advocacy” for terrorism, and when is someone inciting hatred? Due to the vagueness, Rassbach said, he would not be surprised if France cracked down on “disfavored” provocative speech rather than applying these laws strictly across the board. In other words, unpopular inflammatory speech might be prosecuted while popular inflammatory speech might be protected.

Even if French courts don’t convict many individuals in the cases brought under the l’apologie du terrorisme statute, the arrests likely will have a chilling effect on speech.

Do those facing speech charges under French laws have recourse to a higher body? Europe now is essentially a federal system. The European Court of Human Rights (ECHR) establishes certain rights but does not force countries under the same laws. Rassbach said the court is unlikely to overrule France, one of the most democratic countries in the EU. If France decided not to comply with an ECHR ruling, it would undermine the legitimacy of the court.

“Especially for this event that’s been traumatizing to France, [the court is] going to let the French government do whatever it wants,” he said.

Oceans apart

In the United States Inflammatory speech is protected unless it includes a call to imminent violence.

In France Speech that supports terrorism or incites hatred against a person or group of persons is a crime. Incitement to violence is also a crime.