Marc Naimark's writing and interviews _____________________________________________________

Freedom of speech is doing fine in France, unless you think that spending is speech… or that it’s OK to make a donation

Posted in Uncategorized by marcnaimark on 2015/01/29

Dieudonn_M_bala_M_bala_et_AlaiIn a rather predictable backlash, American commentators have found “irony” in France arresting people for speech after calling for national union to defend freedom of expression following the Charlie Hebdo attacks. In doing so, they neglect very real issues of speech in France, like bans on blasphemy and an increasing threat to legal aid funds.

The arrests are for “apology for terrorism”. In at least one case, a fellow is already doing time, when he compounded his DUI with aggravating circumstances of apology of terrorism. Like laws against racist speech, the French consider the law against apology for terrorism reasonable limits on speech to promote a social good, in particular to prevent one goal of terrorism, raising public support for the aims of the terrorists. You may not agree that there is a public benefit to this, and you may think prosecutors are going too far at the moment (for example, prosecuting a teen for a clever take on the very Charlie Hebdo cover that the paper was being sued for blasphemy). But it’s not an outlandish claim, unless you believe in absolute freedom of speech.

In voicing these criticisms of French restriction of speech, Americans are pots calling kettles black. They seem to forget that freedom of speech is also restricted in the US, just not in the same way. In America “hate crimes” are almost always defined by a criminal action aggravated by certain speech. In the United States, freedom of speech only concerns relations with the State; an employer can fire an employee because he doesn’t like that Obama bumper sticker on her car. (Such action is illegal in France, where political speech in the workplace is protected.) In America, freedom of expression can be restricted to “free speech zones” during presidential visits or political conventions.
In the United States, certain speech is specifically prohibited to protect corporate interests, in particular thanks to food disparagement and “ag-gag” laws that prevent the media from reporting on abuses and that punish whistle-blowers so as to protect agribusiness interest. None of these limits on free speech are mentioned in post-Charlie Hebdo criticism of French legal restrictions on freedom of expression.

Nor are the absurd extensions of rights to US corporations taken into account. Hobby Lobby gave corporations freedom of religion, while Citizens United gave them freedom of speech. On the whole, the Supreme Court has enshrined a principle that spending money is a form of speech. And in France, that’s where the real hypocrisy is found and the real harm is taking place with regard to fundamental freedoms. Not only is spending not considered speech to be protected, it’s sometimes banned outright.

The spending in question concerns donations to pay for fines incurred by others. Among the victims of bans on seeking or receiving donations are noted anti-semite Dieudonné (inaptly described by critical Americans as a “humorist”), former president Nicolas Sarkozy, and a lawyer who is paying the fines for the hundreds of women arrested for wearing burqas.
Due to violations of campaign finance laws, Sarkozy had to repay the public funds he received for his 2012 presidential campaigns. Under French law, the candidate is liable for the debts of his campaign, meaning it was Sarkozy who was personally on the hook for the 10.6m euros received in public financing. Instead, his party, the UMP, held a “Sarkothon”, with many supporters contributing to pay back the money owed. Alas, article 40 of the law of July 29, 1881 bans public subscriptions to pay fines, court costs, and damages from criminal court judgments. A legal defense fund, at least one created after a guilty verdict, is thus illegal, with punishment of up to six months in prison and 45,000 euros in fines. The case against Sarkozy appeared to be a slam dunk, with his only out being to claim that repayment of public funds was not a fine, court cost, or damages. Since then, a paper trail has revealed showing that the French treasury office had agreed to this mode of payment.

Whether or not it was illegal, the fact that the ministry had approved the payment made it clear that this was a good-faith effort to comply with the requirement to reimburse the public funds, undermining a potential prosecution. And to make sure that he was protected, Sarkozy has since repaid his party for the amount in question.

Dieudonné is the current case most likely to result in jail time, because he most clearly violated the law. Unlike Sarkozy, the case is crystal clear: the fundraising is to pay fines and damages. Dieudonné, who specializes in anti-semitic “comedy”, performs to sell-out crowds, but officially takes no fees for his shows, leaving him officially insolvent, unable to pay the fines and damages (65,000 euros, or more than 75,000 dollars, accumulated as of early 2014) for the many cases in which he has been found guilty of racist hate speech.

While attacking him on the grounds of crowdfunding his fine payment is legally sound, the law has only been used twice, in 1891 and in 1948, making its potential use against Dieudonné a bit suspect. More generally, it’s a crazy law. Its rationale is that a fine is personal, aimed at punishing the individual fined. To seek help in paying a fine is to undo its punitive power. That kind of makes sense if you make the analogy to the other option for punishment, jail time; it’s as if you were asking for volunteers to each serve a day of your prison term in your place. Where it stops making sense is that French fines do not explicitly vary according to financial resources of those found guilty. A 20,000 euro fine has vastly different punitive power for a billionaire and for a pauper (and no power at all for someone like Dieudonné who has organized his insolvency, at least until a prosecutor decides to go after him for that).

Any illegality is on the side of Dieudonné or Sarkozy’s UMP party, or more generally the person or entity organizing the legal defense fund: donors are not concerned by this law. For the moment, they’re free to use their money as they please (and in the case of Sarkozy, demand a refund now that it’s clear that his entire presidential campaign may have been one huge case of corruption and kickbacks). Presumably anyone could give money to Dieudonné or Sarkozy, who could use that money to pay their fines. The problem is not the donations, it’s asking for them. But that principle may soon change, thanks to yet another highly publicized case involving the law against covering ones face in public.

The actions of wealthy businessman Rachid Nekkaz are the most likely to lead to even more restrictive legislation. When the “anti-burqa laws” were imposed in France and Belgium in 2011 he announced that he would create a “million-euro fund” to pay the fines for women charged with violating the ban. He claims to be opposed to the burqa, particularly when forced on women by their husbands and family, but he’s even more strongly against the restrictions on women’s freedom of movement engendered by the bans, to the point that he has given up his French citizenship in protest (he has also offered financial support for Charlie Hebdo, first in 2012, and then after this month’s attack). His fund aims to undermine the law by removing its practical consequences, and to thus demonstrate its fundamental weakness and racism. Indeed, while the law is written to ban covering the face in public, it is never applied, for example to motorcycle helmets, and only to women in burqas. He has paid 894 150-euro fines in France (for a total he claims of 208,320 euros, although that math is odd) and more than 120 in Belgium.

This is a costly stunt, and one that has succeeded in provoking the ire of the French right-wing. Valérie Pécresse, a high-ranked UMP member of parliament, has sponsored a bill to make paying another person’s fine illegal, at least in the case of this law, and to make the citizenship course mandatory (it’s currently a sentencing option alongside the fine). In response, Nekkaz says he is filing a complaint against Pécresse and her 38 co-sponsors for racism.

Given the history of the application of the law, and the focus of Pécresse’s ban on paying fines imposed under this law alone, Nekkaz can make a strong case for discriminatory treatment. In any case, it’s very hard to see this bill becoming a law (Pécresse is in the opposition UMP, and the Socialists still hold a slim majority in the National Assembly), or if it does become a law, being ruled constitutional. Nor would it be feasible to enforce: money is fungible, and it’s very easy for Nekkaz to say he is making a gift to a woman who just happens to have been fined 150 euros. Nekkaz’s fund is a symbolic measure against a symbolic fine for behavior whose symbolism is unbearable for most French people.

It’s a foolish law, but hardly more foolish than the ban on legal defense funds to pay fines. More important, it’s a distraction at a time when police and military forces are stretched monitoring potential terrorists and protecting public buildings and Jewish places of worship, education, and business, and when the attacks earlier this month show how worn is the nation’s social contract, in particular among the country’s disaffected Muslim youth.

The latter are themselves keen to use the country’s limits on free speech to shut down any criticism of their behavior, as in the case of celebrity attorney Arno Klarsfeld (son of Nazi-hunters Serge and Beate Klarsfeld), who has just received a summons from an investigating magistrate for a complaint filed by an association of “young people from the suburbs” seeking to sanction Klarsfeld for the “crime” of declaring during a TV appearance a year ago: “”No, France is not anti-semitic. There is the hardcore of the far right that is strongly anti-semitic, [along with] part of the far left, and the Islamists, and some young people in the suburbs.”

While Americans need to look at their own restrictions on free speech before criticizing those found in France, the French do need to step back and consider how well-intentioned laws inspired by historic tragedies and the need to get along in a densely populated multicultural society are getting out of hand. A clever cartoon is not an “apology for terrorism”. That anti-semitism is strong in certain social groups is a fact, and saying so should not be a crime. A law against the expressive act of wearing a burqa may be understandable, but one banning the payment of fines for violation of the burqa ban are clearly taking restrictions on fundamental freedoms a big step too far. The knee-jerk response to any problem in France is either a new tax, a new law, or both. Despite their justifiable anger and fears following the attacks earlier this month, French need to resist their reflex to restrict and remember the first part of their national motto “liberté, égalité, fraternité”.

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