Why French Law Treats Dieudonné and Charlie Hebdo Differently, The New Yorker, Jan. 15, 2015
On the same day that the French satirical magazine Charlie Hebdoimmediately sold out an initial run of five million copies of its latest issue—which featured a cover image of the prophet Muhammad—French police arrested the comedian and activist Dieudonné M’bala M’bala for writing on his Facebook page, “Je me sens Charlie Coulibaly.”* Dieudonné was charged with “incitement of terrorism,” for appearing to offer a gesture of solidarity with Amedy Coulibaly, the Islamist gunman who murdered four hostages in a kosher grocery store in Paris last Friday, apparently in concert with the terrorists who carried out the massacre at Charlie Hebdo’s offices two days earlier.
The juxtaposition of the two events—the celebration of a magazine that routinely publishes cartoons considered blasphemous and offensive by many of the world’s Muslims and the muscular prosecution of a relentlessly provocative black comedian—has immediately exposed France to charges of hypocrisy and double standards. To many French Muslims, it seems as if it’s open season for ridicule and anti-Muslim sentiment, while the full power of the state is ready to come down on Dieudonné, who thumbs his nose at the French establishment and enjoys making provocative and thinly veiled anti-Semitic jokes.
The Facebook post was a shrewd move by Dieudonné. As I have written for this site before, the comedian has played a complex cat-and-mouse game with the French state for years, earning himself a raft of trials and half a dozen convictions for inciting racial hatred while, at the same time, building a considerable following, particularly among disaffected young people of North African and African origin. His comic performances have long included jokes such as “The Germans should have finished the job in 1945.” Charlie Hebdo, for its part, has survived forty-eight trials over the past twenty-two years, according to Le Monde, and has lost a total of nine times, generally for “injure”—personal defamation—rather than hate speech, after, for instance, describing a journalist as “a complete and utter cretin” and a right-wing politician as “the bitch of Buchenwald.” But attempts to punish the publication for religious insults have generally failed, whether it was referring to Pope John Paul II as “un pape de merde” (a shitty pope) or publishing cartoons of the prophet Muhammad.
The different treatment accorded to Charlie Hebdo and Dieudonné is, however, built into France’s complex cluster of laws regulating protected speech. These laws are alternately very free and highly restrictive. Right after the French Revolution, France abrogated its old laws making blasphemy a crime—and soCharlie Hebdo’s blasphemous depictions of Muhammad are not a crime. At the same time, France’s press laws, which date to the late nineteenth century, make it a crime to “provoke discrimination, hatred, or violence toward a person or group of persons because of their origin or belonging to a particular ethnicity, nation, race, or religion.” In other words, you can ridicule the prophet, but you cannot incite hatred toward his followers. To take two more examples, the actress Brigitte Bardot was convicted and fined for having written, in 2006, about France’s Muslims, “We are tired of being led around by the nose by this population that is destroying our country.” Meanwhile, the writer Michel Houellebecq (whose new novel was featured in the issue of Charlie Hebdo that came out just before the attack) was brought up on charges, but acquitted, for having said in an interview that Islam “is the stupidest religion.” Bardot was clearly directing hostility toward Muslim people, and was thus found guilty, while Houellebecq was criticizing their religion, which is blasphemous, but not a crime, in France.
This complex distinction reflects modern France’s anti-clerical roots: individuals are protected, but churches and their doctrines are not. There was a powerful desire among the French Republicans to destroy the hegemony of the Catholic Church after the Republic was definitively reëstablished in 1871. This desire did not, however, extend to the creation of something akin to a First Amendment in France. Freedom of expression is mentioned prominently in the Rights of Man, but in practice it is far more restricted than in the U.S., and contains many confusing exceptions. There is a law, for example, passed in 1881, against insulting the head of state. In 2008, when Nicolas Sarkozy was President, a man in a crowd refused to shake his hand. Sarkozy said angrily,“Casse-toi, pauv’con!,” which means something like “Get lost, stupid jerk.” But when a protester later brought a sign reading “Casse-toi, pauv’con!” to a public meeting attended by Sarkozy, the man was arrested and brought up on charges. According to French law, the President of the Republic can insult you, but you can’t insult him—even with his own words.
In 1990, France passed a law that made it a crime to deny the Holocaust. Dieudonné has flouted this law by inviting onstage during his performances—to thunderous applause—Robert Faurisson, a notorious Holocaust denier. But Dieudonné avoided legal trouble by not actually remarking on Faurisson’s theories. In 2013, the French Parliament passed a law against the “direct” or “indirect” incitement of terrorism, and it is this law that is being invoked to prosecute Dieudonné for his recent Facebook post.
France’s version of the separation of church and state—known as laïcité—has a much more anti-religious flavor than the establishment clause of the U.S. Constitution, which prevents the establishment of a state-sponsored Church not in order to suppress all public expression of religion but to allow a multitude of faiths to operate freely. In France, the long battle by Republicans against the Church generated broad hostility to most expressions of religion in public. This tradition came to the fore in 2004, when the Parliament passed the “veil” law prohibiting Muslim girls from wearing headscarves in public schools, and in 2010, when it prohibited face-covering veils in public places.* While the law also included a ban against wearing yarmulkes and “large crosses” at school, the law was clearly inspired by a desire to crack down on the ability of France’s Muslims to express a separate identity in public. In the U.S., such a ban would be opposed by conservatives and liberals alike as a serious limitation on religious freedom and freedom of expression.
Although the French are in no mood for compromise at the moment, they might want to reflect on the fact that America’s Muslim minority, which is free to wear headscarves or not, is far more integrated into American life than France’s. The immediate response in France to the recent massacre has been more forcefully to push its “our way or the highway” form of assimilation, which has, frankly, not been working. This past week, when the French school system enforced a minute of silence for the victims of the Charlie Hebdo attack (generally under “Je Suis Charlie” signs), incidents were reported at some seventy French schools—mostly ones with large Muslim populations—where students resisted the observance. While many French see this as siding with the terrorists over the victims, this is not necessarily so. The French state was, in fact, forcing those students to pay homage to a publication that had, in their view, mocked their religion. If it is legitimate for Charlie Hebdo to publish offensive cartoons, it must be legitimate to object, peacefully, to its doing so.
The broader debate about free expression—and about the discrepancy in the treatment accorded Charlie Hebdo and Dieudonné—also needs to consider the over-all context of media in France. The airwaves and traditional media are dominated by non-Muslim voices. Entire radio and TV programs debate daily the merits and demerits of Islam in France, without much effort to include the views of those in the Muslim community. The commentators on these shows may stop short of hate speech, but many routinely engage in broad generalizations and negative stereotyping. In this context, the vigilant surveillance of Dieudonné’s nasty provocations appears extremely one-sided and disproportionate, and gives him, sadly, far more importance than he deserves.
With France still reeling from last week’s deadly attacks, it may take time for a moderate response to prevail. But if the country wants to turn the attacks into a turning point for renewed national unity, it needs to show that its Republican values of freedom are inclusive and protect all its citizens—not only some of them. Last week’s tragedy could drive a wedge between violent extremists and France’s Muslims, the vast majority of whom are peaceful, or it could deepen the divide between France’s minorities and the rest of the country.