Freedom of Speech: Case Study on That Medieval, Backward, Senseless French Law Against Insulting the French President

China is often regarded as a nation without Freedom of Speech – or at least a nation that disrespects Freedom of Speech, or a nation with serious infractions of Freedom of Speech.  I have often argued that such disparaging conclusions rarely turn out to based on Freedom itself, but a disrespect of China’s social, historical, and political contexts and current interests. I will use recent events to further demonstrate my thinking.

For those of you paying attention on issues surrounding “Freedom of Speech” on the international stage, you might have noticed that France caused quite a stir last week by finally abolishing a law against insulting its president.

The law in question was thrown into the international spotlight when President Sarkozy charged fellow Frenchman Hervé Eon for holding up a cardboard sign at a 2008 rally telling Sarkozy “Casse-toi pov’con,” a profanity in French that directly translates mildly to “break yourself off, poor jerk.” Here is an excerpt of the article “Yes, it really was a crime in France to insult the president until this week. Here’s why” from the Washington Post:

[A]fter 132 years, 20 presidents, one Vichy Marshal and five provisional heads of state later, a left-activist named Hervé Eon will be the last Frenchman to ever violate the law, which the French Parliament finally overturned on Thursday after a ruling from the European Court of Human Rights.

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Between 1881 and 1958, the law against presidential insults was used only nine times. Then, in May 1958, France devolved into a political crisis so severe that, to hear it described now, it sounds more like something out of the Middle East or the most troubled regions of sub-Saharan Africa than Western Europe. The crisis and the decade following it led to heightened curbs on free speech, including aggressive criminal prosecutions for insulting the president.

By 1958, France had been at war for four years in Algeria – technically a civil war, as Paris considered this North African country a part of France – and it was going badly. Some politicians were wondering if the military shouldn’t pull out altogether, as they had in Vietnam a few years earlier. The military leadership, dominated by right-wing nationalists who saw the Algerian war as a point of national honor after the defeats of World War II, insisted that France stay at any cost. When it looked as if they might be overruled, a group of French generals in Algeria overthrew the civilian government there, landed troops on Corsica and announced that they would soon invade mainland France and march to Paris to seize power. Mere hours before the planned assault, France’s civilian president announced he would meet the military’s demands by ceding power to the former military leader and national hero Charles de Gaulle, who promptly dissolved the constitution.

De Gaulle’s 10-year reign saw more attempted military coups, mass unrest, assassination attempts by officers with his own military and a difficult effort to end the war, which he did in 1962 when Algeria finally won independence. Perhaps in response to the threats he faced or perhaps out of the paranoia that such instability can sometimes breed, de Gaulle did lean in the direction of authoritarianism. And this included frequently convicting people under the previously obscure law against presidential insults.

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One of the law’s fiercest critics during the de Gaulle years was a young socialist activist named Francois Mitterend, who would go on to be the French president from 1981 to 1995. In the 1968 Time article, Mitterend is quoted as calling the rule “a law of oppression” and pledging to work toward its appeal. He never succeeded and, though as president he pledged never to use the law, he didn’t bother attempting to repeal it. Perhaps, like much of the turmoil in France during the 1960s, he’d hoped not to rehash it all.

Most people in the U.S. applaud the appeal of the law as anachronistic.  But it is important to see that the law is not as frivolous as it might appear to be.

America, too, had laws against insulting its government in its history (although most of those laws have been long since repealed as not really designed to uphold the nation’s security).

In 1798, for example, the U.S. Congress – which contains many prominent members of the original signatories of the America’s famed First Amendment – passed the Alien and Sedition Acts. That law prohibited the publication of

false, scandalous, and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame…or to bring them…into contempt or disrepute; or to excite against them…hatred of the good people of the United States, or to stir up sedition within the United States, or to excite any unlawful combinations therein, for opposing or resisting any law of the United States, or any act of the President of the United States.

Some 150 years since the founding of the U.S., the U.S. Congress passed the so-called Espionage Act of 1917. President Wilson had publicly stated that “[a]uthority to exercise censorship over the press … is absolutely necessary to the public safety.” While the Senate would remove the censorship provision by a one-vote margin, the Act still made it a crime to convey information that interferes with the operation or success of the armed forces of the United States or to promote the success of its enemies. It made it illegal to cause (or attempt to cause) insubordination, disloyalty, mutiny, refusal of duty, in the armed forces of the United States or to willfully obstruct the recruiting or enlistment service of the United States. The Espionage Act of 1918 would more broadly forbid the use of “disloyal, profane, scurrilous, or abusive language” about the United States government, its flag, or its armed forces. It actually made it criminal to make any speech that caused others to view the American government or its institutions with contempt during times of war.

Few of the founding fathers of the U.S. Constitution would have viewed any of these laws as unconstitutional.  What makes them unconstitutional has more to do with the historical circumstances the U.S. later found itself – the nature of the harms the nation actually faced and the partisan application of the laws to frivolously restrict speech – rather than the principles underlying the laws per se.

Given these histories, it should not be too surprising that the French law has survived until so recently.  While there has been ever greater convergence between European and American standards of Freedom of Speech in law and values, the French experience is still distinctly different.  As the Washington Post article noted, as late as the late 50’s and early 60’s, France did enter a period of political instability and uncertainty when the law was legitimately leveraged to keep stability.  Even today, defaming and insulting “public officials” – not surprisingly – remains a separate discrete offence in France under its Press Law carrying exactly the same penalty as the just abolished law against defaming and insulting the presidency.

In general. the problem with any talks about Freedom of Speech is that the Freedom is never – can never be – an absolute value.  Inherent in any Freedom is always the limit against harm.  Freedom of Speech never includes a general license to do harm.  Herein lies the existential, but little debated, definition of Freedom.  Harm is not a limit or an exception to freedom.  It lies at the very root and definition of Freedom.  If speech per se were just about “speech” (“banter” if you will) that can be separated from harm (acts if you will), everyone could surely have as much of it as he or she desires. But it is not. Speech always has the potential to generate actual, real harm. “Freedom of speech” is thus about the art of devising rhetoric to cast something as mere “speech” vs. “acts” that cause “harm” or the related art of defining and weighing the costs and benefits of “speech” should that something be categorized as “speech.”

If every generation thinks it has gotten the balance of freedom better than the previous, it’s not because the previous was not enlightened, it’s because circumstances have changed, and rules and norms need to be updated. To the extent there appears to be a march toward ever expanding freedom in the West, it comes about only because the West has been on a progressive march to become ever more dominant (and thus more secure) in the world.  Consider for example how the harm facing a country like France after WWII as part of a political and military alliance (NATO) that outspends its potential foe annually by a ratio of over 10:1 must be strikingly different from that before WWII.

If one understands the above, one can understand why the abolition of the French law against insulting and defaming its president is not about freedom per se. It reflects merely that the harms facing the French state, the French nation, French society, or the French polity have changed.  If indeed the insult and defamation of the French President is ever deemed to cause actual harm to the French polity or nation, make no doubt, those acts will become criminalized again.

On the topic of freedom of speech in France, one should not forget that in France, wearing head scarfs in public is still against the law.  It is illegal because public display of head scarfs is deemed a threat to the French’s unique and particular sacred sense of  “principle of secularism.” In France and Germany, denying the holocaust is also still a crime.  The holocaust is still deemed sensitive enough that allowing it to be denied  is deemed to cause unacceptable social and political turmoil.  And in Germany, joining a neo-Nazi party and making pro-Nazi speech – together a host of other activities that the current government there deems to be against “personal dignity” or the German “Constitution” – are also illegal. Apparently, Nazi ideas has enough pull with a significant number of its populace that the government deems it to be a real, existential danger to today’s entire political order.

All this appear so quaint to those who thought freedom was about an absolute ideal. Yet, the inconsistency between the French or Germany conceptions of Freedom vs. say the Americans is not that they have different visions of freedom (which, really, I think is just empty rhetoric), but that they have different perceptions of harm (this is the real stuff).  The recent Snowden affair where the American public have wholesale bought the government’s labeling of a whistle blower as a traitor is yet another opportunity to see how Freedom is defined by underlying harm, not by any absolute ideal of Freedom.

Discussions of Freedom necessarily requires one to live and embrace each society’s cultural, political, and historical experiences.  That’s why debates on Freedom of Speech can be so controversial, emotional, and demeaning. If one is not careful, discussions about Freedom can easily devolve into categorical de-valuation and discounting of other peoples’ historical, political, cultural experiences.

The Washington Post welcomes the abolition of the French law against insulting its president politely, even respectfully.  Can you imagine it doing similarly for discussions over freedom of speech for China this way?