Writing in Les Echos, barrister Jean Baret criticises the French media's take on the legal ramifications of the Charlie Hebdo attack, arguing that the question of where to draw the line between freedom of expression and blasphemy is a red herring compared to the far more serious assault the perpetrators carried out on the basic rule of law. Article source: "Le faux débat sur la liberté d'expression après l'attentat contre Charlie Hebdo", Jean Baret, LesEchos.fr, 20/01/2015.
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On the one hand, there are those who contend that secularism in France must allow caricatures of the prophet, and generally any form of expression that might be considered blasphemous; on the other, there are those who are horrified by the terrorist atrocities but who claim that a religious community should not be subject to blasphemous insults and that the violence should make everybody think about what is appropriate material for a newspaper.
And yet, from a legal standpoint, the attack on Charlie Hebdo has nothing to do with the limits of freedom of expression. If the press is so keen to present this tragedy in legal terms, they should focus on the issue of people living side by side in a democracy, and prohibiting citizens from taking the law into their own hands.
There are many limits placed upon freedom of expression in the French Press Law of 1881, which has been extensively amended over the years. The law prohibits anyone from publicly inciting crimes (articles 23 – 24), contesting the existence of crimes against humanity (article 24b), sedition (articles 25 and 27), defamation (libel and slander in articles 29 – 35d), and insulting foreign heads of state and diplomats (articles 36 and 37). Freedom of expression is also restricted within the courts and during ongoing trials (articles 38 – 41-1).
In the case of a caricature of Muhammad and/or of the religious community that holds him sacred, it is reasonable to ask if this consitutes a racial slur. But whether or not Charlie Hebdo broke the law in this instance is beside the point when considering the tragedy that befell the editors.
Fundamentalists, even moderate Muslims, may well have felt aggrieved at the cartoons in Charlie Hebdo, in the same way that the Jewish community may have felt aggrieved at some of the things the French comedian Dieudonné has said. However, the only acceptable solution is to take legal action and to abide by the decision of the court. An alternative would be to form a lobby to campaign for a change in the law, via the democratic process, and to put the criminalisation of blasphemy to the vote.
But when someone arms themselves and kills people because they have been wronged, this must not result in questions being raised amongst the press and public about the possible legitimacy of such an act. Terrorism does not target freedom of expression, but democracy itself, the idea of justice and of people living side by side. The question that needs to be asked is how these concepts can be transmitted to those whose minds seem impervious to notions of freedom and tolerance.
In a democracy, laws are passed to regulate the behaviour of its citizens: limits are set and those who consider that these limits have been crossed have no alternative but to go to court in order to obtain redress. If a judge or jury decides that no legal limits have been crossed, the plaintiffs have to accept the verdict. If the court finds that the law has been broken, the judge passes sentence and this must be enough for the victims.
In other words, one has to accept that others might cause suffering which can be considered legally legitimate. Which is why making an employee redundant is acceptable for an employer facing financial difficulties. And in a secular state, some of the content circulated in the press is likely to upset some religious citizens, while its publication remains entirely legal.
If this appears unacceptable, the only solution is to go to court and potentially get the offender punished. If an employee is wrongfully dismissed, they will obtain damages. If someone commits slander or libel, they will be made to pay damages.
The same thing is applicable in all situations, even the most horrific. Thus, if a drunk driver kills a child, the parents can only take legal action in order to get justice for the tragedy. If they were to get a Kalashnikov and kill the driver, there would be little point in discussing the sections of the Code de la route (the French Highway Code, ed.) relating to punishments for driving under the influence of alcohol.
Whilst the limits of any right or law must of course be constantly reviewed, whether it be related to driving or to freedom of expression, these are not appropriate occasions for this kind of scrutiny.
When someone takes the law into their own hands, they are undermining the ability of citizens to live side by side in a democratic society, rather than calling into question some specific law. When a group thinks they have suffered as a result of another’s actions, however well-founded their claims, they do not get the right to mete out justice on their own terms. That is the very foundation of our democracy.
Anybody in the media wishing to provide a legal backdrop to the Charlie Hebdo terror attack could simply remind people of article 221-1 of the Penal Code which states: “The wilful causing of the death of another person is murder. It is punished with thirty years' criminal imprisonment”. Article 221-3 goes on: “murder committed with premeditation is assassination. Assassination is punished by a criminal imprisonment for life.”*
It should be added that, if a person commits murder, the only situations in which he or she is not considered criminally liable is if, when the act was committed, they were suffering from a psychological or neurological disorder (article 122-1), acting under irresistible constraint (122-2) or, in certain cases, in self-defence.
Revenge is not now and never will be an acceptable argument for diminished responsibility in a murder case.
To conclude, it is not freedom of expression that needs protecting in the aftermath of the terrorist attacks on Charlie Hebdo, it is the fundamental right granted to every citizen to take legal action and the outright prohibition of revenge.
Editor's notes
* These translations of the texts of French homicide law are taken from the official English version of the Code pénal (pdf available here). They are not great. In English law, what is called 'assassination' here ('punishable by life imprisonment', as it is usually put), would simply be called 'murder'; in the US it is more often known as 'first degree murder'.
Translation by Wendy Ho-Tram-Foo and Sara Chtaïni
Editing by Sam Trainor