France's post-Hebdo crackdown on 'incitement': Hypocritical?

Many wonder how Charlie Hebdo's cartoons can be held up as 'free expression' while statements of sympathy for the gunmen's anger are 'incitement of terrorism.' The explanation is tied up in the law.

Francois Mori/AP
An anonymous art installation showing a broken pencil is displayed on the pavement near the Charlie Hebdo office in Paris, Tuesday.

Since the deadly terrorist attacks on satirical magazine Charlie Hebdo, the French government has been touting the country’s right to freedom of expression.

At the same time, it has been aggressively enforcing its laws against incitement of terrorism, arresting more than 50 people for comments that it says condone last week’s killings or terrorism in general. Among those arrested was controversial French comedian Dieudonné M’bala M’bala, who posted on Facebook that he "felt like Charlie Coulibaly," a play on both pro-Hebdo comments and the name of dead gunman Amedy Coulibaly who killed four hostages at a kosher supermarket in Paris.

For France’s more than 3 million strong Muslim population – many of whom continue to struggle with integration into France’s mainstream – the irony of allowing Charlie Hebdo to publish cartoons that blatantly insult Islam coupled with the government’s bolstered efforts to crackdown on hateful remarks can feel hypocritical.

But experts say it is actually a byproduct of France’s unique laws on blasphemy, freedom of expression, and hate speech. While the French government may look like it is willfully wielding a double standard, French law makes different demands on how Charlie Hebdo’s cartoons and remarks that "incite terrorism" are handled.

Sympathy for Coulibaly?

While France initially saw a swell of solidarity in the aftermath of the Paris attacks, particularly via prevalent "Je Suis Charlie" ("I am Charlie") signs and statements, there has been a growing counter-sentiment online of “Je ne suis pas Charlie” ("I am not Charlie"). There have been more than 25,000 tweets of #JesuisKouachi and #JesuisCoulibaly. Many of the comments come from disaffected youth who may already feel cast out of the country’s mainstream.

Among those expressing sympathy for the attackers was Mr. Dieudonné, who wrote “Je me sens Charlie Coulibaly” (“I feel like Charlie Coulibaly”) to his Facebook page. Mr. Dieudonné’s comments invoking Coulibaly were not only seen as in poor taste but reason to arrest him on “incitement of terrorism” charges.

Since the Paris attacks, there have been mounting arrests across the country for comments either spoken or written on social media that appear to condone terrorism.

The French government has introduced fourteen anti-terrorism laws since 1986, but a November 2014 law took it out of press law and into the criminal code. Punishment can now be fast-tracked, with prison sentences of up to five years and a 45,000 euro ($52,000) fine. [Editor's note: The original story has been updated to clarify the changes to France's anti-terrorism law.] Prime Minister Manuel Valls said last week that incitement of terrorism and racism were not opinions but crimes, while French Interior Minister Bernard Cazeneuve said Dieudonné’s remarks showed “a lack of respect and a willingness to stir up hatred and division.”

Ridiculing religion or ridiculing the religious?

The idea that "lack of respect" and "stirring up hatred and division" applies to Dieudonné but not Charlie Hebdo may seem contradictory, but it is rooted in French legal tradition.

France’s freedom of the press law – which acts as a foundation for its current anti-terrorism law – dates back to 1881. It clearly states that anyone found to incite discrimination, hate, or violence toward a person or a group of people due to their origin, or belonging to a race or a religion, faces one year in prison or a 45,000 euro ($52,000) fine. But France has no laws on blasphemy – it abolished the offense in 1791.

In addition, there is a distinction between religion and a person or group of people, according to Pascal Reynaud, a media and communications lawyer in Strasbourg. “The amount of freedom you are allowed is very significant as long as you don’t directly target people in particular but instead the religion as a whole.” Thus, Charlie Hebdo escapes breaking the law by aiming its ridicule at Islam in general, as opposed to the broader Muslim community.

The magazine also benefits from a European Court of Human Rights ruling in which controversial comments are allowed as long as they fit within legitimate public debate. Patrice Rolland, a professor emeritus in public law, says this public versus private clause has already been seen in France – in 2006, sociologist Edgar Morin was cleared of anti-Semitism charges, after he was arrested for his criticism of Israel’s policies on the Palestinian territories in 2002.

“We had to accept very controversial comments on political matters because it involved issues that were part of public debate on an unresolved issue, and not a questioning of a veritable historical event,” says Professor Rolland.

'Incitement of terrorism'

But while Charlie Hebdo’s portrayals of the prophet are deemed legally acceptable, Dieudonné’s sympathy with a terrorist is more ambiguous. The Parquet de Paris will judge whether the comedian’s comments fit into public versus private debate, as well as whether they are judged to incite terrorism – either directly or indirectly.

While the new incitement of terrorism law is rife with ambiguity, France’s laws on hate speech, especially when it comes to Holocaust denial, are not. In fact, France made denying the Holocaust a punishable crime in 1990.

Dieudonné’s history of anti-Semitic rhetoric – in 2008, the comedian invited notorious Holocaust denier Robert Faurisson on stage at one of his performances – are likely to influence the judge’s ruling on Dieudonné’s case.

However, for the 50-odd people who have been recently charged for hate speech or condoning terrorism, it is difficult to say how the courts will proceed. Some say that the arrests target people who have no direct links to the Paris terrorist attacks or that they are being used as an example to show the government’s new crackdown on dissent.

Amnesty International’s John Dalhuisen warned in a press release that “the French authorities must be careful not to violate this right [of freedom of expression] themselves.”

Amel Boubekeur, a French sociologist and non-resident fellow at the German Institute for International and Security Affairs, says the government’s new hardline approach doesn’t get to the root of the problem and is simply ineffective.

“It’s not a matter of right or wrong, it’s a matter of it not being efficient,” says Boubekeur. “Flagging up a 15-year old who posts a photo of himself holding a gun? Education would be much more effective. Instead, the government is stigmatizing an entire population.”

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