Religious Freedom and Freedom of Expression in France1
There is no specific protection against a religious offence in France,2 even though respect for religious beliefs has its place in the French Constitution. The right to be respected for one’s religious beliefs is indeed linked to the freedom of conscience, deriving directly from art. 10 of the 1789 French Declaration of Rights (‘No one shall be disquieted on account of his opinions, including his religious views, provided their manifestation does not disturb the public order established by law’), according to the French Constitutional Council. In a first step, the Constitutional Council seemed to dissociate this freedom from this article, defining the first as a ‘fundamental principle recognized by the laws of the Republic’.3 But after the decision no. 2001-446, 27 June 2001, the Constitutional Council made sure it endorsed art. 10 and also the 1946 Preamble, to again declare that freedom of conscience is a ‘fundamental principle recognized by the laws of the Republic’.
Respect for religious beliefs is also linked to art. 1 of the French Constitution, which defines the French Republic as secular (laïque) and requires that ‘all beliefs’ be respected. Of course this respect is guaranteed for protecting freedom of faith in relation to individual and collective freedom of religious expression, but it becomes non-existent if we attempt to include, as a logical ramification, the protection against a religious offence. There are two major reasons for this particular lack of protection. The first is that religious beliefs are respected as one of the forms of French ‘freedom’ of opinion. Yet, the French Declaration of Rights does not make a distinction between categories of opinion in its art. 10, as the European Convention on Human Rights does, with its two separate articles, one on freedom of thought, conscience and religion (art. 9) and the other on freedom of expression including ‘the freedom to hold opinions and to receive and impart information and ideas without interference by public authorities and regardless of frontiers’ (art. 10).
The term ‘religion’ is therefore seen by the French constitutional norm as an opinion. The word religion is expressed in the Declaration of Rights, art. 10, as a ‘religious opinion’ (or religious view depending on the English version). The word religion is also mentioned in art. 1 of the present Constitution (‘France shall be an indivisible, secular, democratic and social Republic. It shall ensure the equality of all citizens before the law, without distinction of origin, race or religion. It shall respect all beliefs. It shall be organised on a decentralised basis’), as well as in the 1946 Preamble, paragraph 1, both of which forbid discrimination ‘by virtue of religion’. But it is the term ‘beliefs’ that is preferred in art. 1 of the present Constitution, as well as in the 1946 Preamble, paragraph 5, stating that: ‘no person may suffer prejudice in his work or employment by virtue of his origins, opinions or beliefs’. There is no law that provides a legal definition of religion, nor decision from the Constitutional Council, nor judgment from the Council of State (Highest Administrative Court).
It is therefore the freedom of opinion, ‘including religious views’, that the French Declaration protects. Article 1 of the present Constitution (1958), on the ‘respect of all beliefs’, is an undetermined quantitative article in that it does not qualify the term ‘belief’. There is a fundamental and voluntary lack of precision between the notions of opinion and belief, between the nature of opinion and belief and between faith and conscience. All in all, in the different texts on the protection of civil liberties, we find a general trilogy of ‘political, religious and trade union’ opinions, but there is no distinction between religious beliefs and other beliefs. Freedom of opinion protects all beliefs in general. It is not possible to find a hierarchy between an ordinary freedom of opinion and an ‘extraordinary’ one, based on art. 10 of the 1789 Declaration of Rights, even when combined with art. 1 of the 1958 Constitution on the respect for all beliefs.
Consequently, no right for (legal) recourse against criticism of religions or intimate beliefs exists either, even when it is ‘blasphemous’; freedom of opinion renders all opinions, even anti-religious ones, perfectly free. Intimate convictions are treated equally with all other forms of belief or opinion.
The second reason for not providing protection against religious offences is that freedom of expression is both extremely broad and secure under French law. It derives from art. 11 of the French Declaration of Rights, which states: ‘Free communication of thoughts and opinions is one of the most precious rights of man. Every citizen may therefore speak, write, and print freely, if he accepts his own responsibility for any abuse of this liberty in the cases set by the law’. Freedom of the press4 and audiovisual freedom5 consequently have their place in the Constitution. In other respects the French Constitutional Council has presented freedom of expression as being of particular importance: it is ‘a fundamental freedom, especially since it exercises one of the essential guarantees for the respect of the rights and liberties of others’.6 Making one’s own convictions public and carrying them into the public sphere necessarily exposes the believer to various legitimate reactions in the framework of democratic pluralism. The believer cannot expect to be protected in his convictions. This sort of logic turns out to be close to the Handyside judgment, rendered by the European Court of Human Rights (ECtHR): freedom of expression implies the risk that information or opinions can ‘offend, shock or disturb the State or any sector of the population’.7 According to the ECtHR, this freedom also constitutes one of the essential foundations of a democratic society. And, combined with the democratic principles of equality and pluralism, it does not tend to invoke, in order to protect the offended religious conviction, any opinion that would attack the aforesaid conviction. ‘We cannot imagine a case, where freedom of expression is at stake, which is not initiated by speeches judged shocking, afflictive, troubling or disturbing toward one or several individuals, or toward one or several public authorities. We cannot imagine the debate of ideas, including those about religion, without a confrontation between the protagonists who wish it’.8
In the first section, we will see how constitutional indifference vis-à-vis ‘religion’ has highly advantaged freedom of expression in France, when it ‘attacks’ religion. In the second section we will present the limits that nevertheless exist on expressing anti-religious views due to general legal constraints that weigh on freedom of expression.
Religion, a Matter for which Expression is in Principle Free
Because freedom of opinion and freedom of expression go hand-in-hand, religion is susceptible to being debated, commented and criticized: it’s a subject for which opinions and their expression are free, in principle. It is only by way of exception, when an infringement upon religious convictions legally constitutes an abuse of expression (verbal discrimination, insult or slander, provocation or incitement to racial violence or hatred), which intrudes on public order or upon other’s freedom, that it becomes possible to penalize a religious offence. It will not be the protection of religion itself that will justify the limit, but the necessity of safeguarding the public order or the protection of the rights of others.
One can freely express oneself on a religious matter. Specifically religious criminal liability does not exist: French criminal law does not foresee and cannot foresee the criminal liability of blasphemy or attacks upon religious morals. Blasphemy was deleted from the text during the Revolution in 1791. It was re-established by the Law on Sacrilege in 1823, as a symbol of the royal absolutist temptation brought by Charles X, who also re-established in the French constitutional Chart Catholicism as the State religion (para. 6). The Law on Sacrilege was never applied and was abolished in 1830 by the Monarchy of July. It called for forced labour and eventually capital punishment for religious acts of profanity. Today freedom of expression entails the possibility of criticizing or caricaturing one or several religions.
Absence of Specific Religious Criminal Liability, Absence of Blasphemy
As a consequence of the absence of a legal definition of religion, which is necessary to the principle of neutrality and freedom of conscience, an oral, written or drawn religious offence is included in the general legal provisions for offences of this nature. Since the French Revolution, there is no offence that corresponds to blasphemy in other countries. This was already the case long before the 1905 Law on the Separation of Churches and State, which put an end to the system of a State-recognized religion. In other respects, the French Constitutional Council Decision of the 19 November 2004, concerning the previous constitutional European Union Treaty, held that: ‘Provisions in art. 1 of the (French) Constitution, stating that France is a secular Republic, forbid all from taking advantage of their religious beliefs to emancipate themselves from shared rules governing relations between communities and individuals’.9 In this perspective, a specific criminal liability for a religious offence would undermine preventative rules laid down by the constitutional judge in the case of religious ‘communitarianism’. Indeed, since 1999, a constitutional judge has relied on art. 1 of the 1958 Constitution to affirm that ‘these fundamental principles oppose the recognition of collective rights for any group defined by a community of origin, language or belief’.10 This ban, using the same terms, is reiterated in the Constitutional Council Decision of the 19 November 2004.
Now we can understand why criminal liability for blasphemy is impossible in France and that none of the rules punishing an abuse of expression because of religious affiliation – especially those foreseen in the 29 July 1881 Law on the Freedom of the Press and in the criminal code – comes close to making this possible, even if someone might otherwise invoke as a counter-example art. 166 of the Alsatian criminal code,11 maintained in a region that was reintegrated into France after the First World War and where many laws inherited from the German Empire have been preserved.
Absence of Criminal Liability for Attacking Public and Religious Morals
The great ideological battles of French history ended up reducing ‘moral surveillance’ of the population to constitutional safeguards on public order and the respect of the rights of others. A religious offence, in French law, cannot fall under the category of any ‘contempt of public or religious morality or public indecent act’, because this offence simply does not exist in the French penal code. This type of criminal liability, established in the former penal code by the law of 17 May 1819 on Freedom of the Press, was abbreviated, then transferred to the 1881 Press Law as ‘contempt of public mores’, before becoming a penal code offence. The notion of contempt of public mores was withdrawn from the new 1994 penal code, in favour of a more concrete qualification of an incriminating event such as a sexual exhibition (art. 222–32). The notion of morality as a component of public order required instead a direct and physical attack on human dignity.
Contempt of public and religious morals disappeared from the French context after having been an instrument of public policies for a long while. It corresponds to a long tradition of censorship and surveillance of behaviours and beliefs in a country where the Catholic religion was the State’s religion until the end of the eighteenth century. Anti-Catholic criticism deriving from Protestantism or anti-religious criticism deriving from atheism and liberalism, displaying one’s impiety or sexual immorality or asserting one’s atheism, were inexorably confronted by censorship and punishments ranging from being sent to the galleys, to exile, torture, mutilation or death. Capital punishment was provided for again (although not applied) by the April 1757 Declaration.12 Numerous were the writings and declarations, from Molière’s Tartuffe case, to the Philosophical Dictionary, followed by the forbidden publication of Madame Bovary and the famous case against Charles Baudelaire’s Fleurs du Mal in 1857, that censorship in France forbade, for their irreligious content and/or contempt for decent moral standards of behaviour.
The Freedom to Criticize and to Caricature one or Several Religions
The legacy of ‘moral order’, as an impediment to freedom of expression, whether real or imaginary, is vivid enough in France to explain the textual silence on this offence. More so, anti-religious criticism, like the rejection of ‘moral order’ backed by censorship, is one of the symbolic pillars of freedom of expression in France. It is consecrated by the use of satire.
The Houellebecq case illustrates this assertion. Despite acceptance that this famous writer had called Islam ‘the most idiotic religion in the world’, and qualification of this as an ‘insult’ based on art. 33 of the 1881 Press Law was accepted, the balance of judgment leaned towards acquittal. The public ministry (setting aside the defendant’s good faith) put forth the view that ‘magistrates were not there to lecture on morals, but to punish criminal acts’. Houellebecq’s statement does not constitute a ‘racial insult’, and was not said to ‘provoke discrimination, hatred or racial violence’. The decision conformed to the public prosecutor’s request. In its evaluation of the case, the Court suggested that:
a spoken personal opinion relative to a religion, considered in its conceptual sense and which is not accompanied by an exhortation or call to share it, does not constitute an offence, even if it could shock the people concerned from their attachment to their community or faith.13
Freedom to criticize In the Giniewski14 case, in a judgment entered on 8 March 1995, the trial judge considered terms used against Catholics as slanderous, in an article published in the newspaper Le Quotidien de Paris by Paul Giniewski, a journalist, sociologist and historian, on the encyclical Splendour of the Truth published by Pope John Paul II. In this article, Giniewski wrote that the Catholic doctrine of the achievement of the old by the new Alliance had been motivated by anti-Semitic ideals and formed the roots of the Nazi holocaust. But the Court of Appeal in Paris overturned the decision, on 9 November 1995, stating that ‘the thesis put forth was exclusively a matter of doctrinal debate (and) did not legally constitute a precise act susceptible of being characterized as slanderous’. This decision was accepted by the Court of Cassation, which rejected the appeal.