PARIS: In the aftermath of France’s jihadist attacks, many have been left scratching their heads over how authorities can vaunt the importance of free speech while jailing people for comments that appear to “condone terrorism”.

The deadly attacks also brought to the fore the contested right to mock religions in a country with a large Muslim community, after the Charlie Hebdo magazine was targeted for its past depictions of Prophet Muhammad (PBUH), viewed as highly offensive under Islam.

“We cannot march for freedom of expression and put people in prison just because they expressed themselves,” said Basile Ader, a media rights lawyer, for whom the current climate of emotion and fear may explain the severity of recent prison sentences.

Pope Francis summed up the controversy when he said in the Philippines: “To kill in the name of God is an absurdity.”

But “you cannot provoke, you cannot insult other people’s faith... Freedom of speech is a right and a duty that must be displayed without offending”.

Unlike the United States, where the First Amendment of the Constitution guarantees virtually blanket legal protection for free speech, France has a complex web of laws and traditions.

Judges wrestle with the need to fight against extremism and respect religious convictions, as well as a deep-rooted secular tradition, a tacit right to humour and the right to criticise, experts say.

In an example of this fine line, French comedian and polemicist Dieudonne was charged for condoning terrorism after saying “I feel like Charlie Coulibaly”, a mix of the slogan “Je suis Charlie” and the name of the gunman who killed a policewoman and four Jews last week.

Others have been sent straight to jail for one to four years, just days after millions across the country took to the streets in support of free speech.

Why? Dieudonne may have a past record of shows deemed anti-Semitic, but his latest arrest — and that of other people — have raised questions.

Complex web of laws

Freedom of expression is enshrined in France’s human rights declaration and the European Convention on Human Rights.

But France’s 1881 freedom of the press law imposes limits on this fundamental right.

It says that those who provoke “discrimination, hate or violence towards a person or a group of people due to their origin, belonging or non-belonging to an ethnic group, a nation, a race or a religion” can be jailed for one year and/or fined 45,000 euros.

Under the same law, those who question the existence of crimes against humanity such as the Holocaust will be given the same punishment, and people who condone terrorism can be jailed for five years.

Applying these laws is made more difficult by other rulings and traditions.

On the one hand, French judges acknowledge a tacit right to humour that is not enshrined in law when they are examining cases brought against comedians or satirical magazines.

And the European Court of Human Rights, whose judgements are binding on countries concerned, has ruled that making controversial comments as part of a public debate is allowed, says Patrice Rolland, a human rights expert at Paris’s UPEC university.

That judgement was used in the case of French sociologist Edgar Morin, whose vitriolic 2002 comment piece on Israel’s policy in the Palestinian territories saw him dragged to court for anti-Semitism and sentenced.

But France’s highest appeals court the Cour de Cassation eventually let him off, arguing that his comments were part of a wider public debate, Rolland said.

Free speech and religion

Further complicating things, France has a strong anticlerical tradition that dates back from the Revolution, when the offence of blasphemy was removed from legislation.

In Britain, the right to criticise religious faiths and belief is also enshrined in law, but publications there are more restrained in what they decide to publish.

“We’re not in that sense such a secular country,” said Eric Barendt, an expert on freedom of expression in Britain.

“There’s a feeling here that we shouldn’t spoil inter-community relations and it may also be an apprehension of bomb blasts,” he said, referring to the deadly July 7, 2005 attacks.

In the United States, meanwhile, self-censorship is also more prevalent, said Karin Karlekar of US watchdog Freedom House. “There might be pressure from certain groups, there might be a media outcry, and they [outlets] might withdraw [material deemed offensive] of their own accord, but it wouldn’t be because of the law or a legal case being brought.”—AFP

Published in Dawn, January 17th, 2015

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