France’s Ban On Hate Speech Goes Too Far

Published March 27, 2018

Bloomberg View

French Prime Minister Edouard Philippe announced last week his government’s plan to “fight racism” to much fanfare. The cause is a worthy one (who can be against fighting racism?), but sadly the plan is a disaster.

The government wants to make it much easier to ban any online content deemed to be racist or to be “promoting hatred.” One might ask why the urgency when, according to the official figures, hate crimes are down 16 percent from last year. French President Emmanuel Macron clearly feels it’s an issue that resonates with voters.

The problem with the flash bans on hateful speech is obvious: collateral damage to speech that should be protected in democracies, including of course speech that is hugely distasteful to many. It’s exactly for this reason that the new rules go too far.

France has historically been one of the most restrictive nations when it comes to speech, after Germany. While Germany’s specific neuroses regarding its Nazi past make its extremely restrictive hate speech laws understandable, France has really never had a free speech tradition in the Anglo-American mold.

Voltaire never did say the famously apocryphal phrase, “I may not agree with what you say, but I will defend to the death your right to say it,” and if he agreed with the sentiment, French law and French popular opinion never really went along. While freedom of speech is the very first amendment to the U.S. Bill of Rights, France’s Declaration of Human Rights only gets around to the issue by Article 9.

France loves regulating speech. The country’s powerful defamation law is frequently used by the powerful to bludgeon legitimate investigative stories with legal threats, and is an effective deterrent. France still has a law on the books making it a criminal offense to insult someone. Google was once fined under the law because its algorithms suggested the word “crook” next to a businessman’s name in search topics. This was deemed an insult.

“Incitement” through speech is also a crime, and the list of things that it is bad to incite is very long and very vague and therefore very ripe for abuse: advocating for war crimes, crimes against humanity, terrorism, using or selling drugs, but also advocating for “discrimination” against a very long list of protected groups, including religious groups and people with non-traditional sexual orientation. A member of parliament was fined under the law for quoting the Bible’s verses about homosexuality.

Another law, passed in 1990, makes it a crime to question the historical veracity of Nazi crimes. Given that it was only confirmed after the fall of the Berlin Wall that the Katyn massacre of Polish officers was committed by the Soviet Union and not the Third Reich, had the law been passed just a few months earlier, legitimate historical scholarship would have been criminally liable in France.

France’s authoritarian streak runs deep and stems from the belief that for most problems there’s a fix that lies with the state. The law is unlikely to deter those who hurl racist abuse online, as they tend to thrive off a desire to thumb their noses at the established order. But the potential for abuse is enormous. And then there’s the hate-speech that the law doesn’t cover. It recently came to light that a far-left group is squatting in a Paris university building and painting its walls with lewd graffiti targeted at white French. Will laws be enforced against this type of racism as well?

During his impassioned speech, the prime minister rhetorically asked why it was that it was easier to take down a soccer match that infringes on copyright than it is to take down a racist video. The answer is obvious: The latter is protected speech and the other isn’t.

“Racism is not an opinion, it is a crime,” said Philippe; the phrase is often repeated in France. Racist speech may be a crime under French law, but as a matter of fact it is an opinion. It might be flat-out wrong and despicable, as I believe it to be, but a nation of adults should be confident enough in its capacity to defeat terrible opinions in an open marketplace of ideas rather than through heavy-handed and counterproductive means.

Pascal-Emmanuel Gobry is a fellow at the Ethics and Public Policy Center.

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