Even idiots like Dieudonné must have free speech

In November, the European Court of Human Rights (ECHR) struck another blow against freedom of expression. Dieudonné M’Bala M’Bala, a French comedian and political activist, had appealed to the ECHR, claiming his right to free expression had been denied when a French court convicted him of an anti-Semitic hate crime in October 2009. But the ECHR rejected Dieudonné’s appeal on the grounds that Article 10 of the European Convention on Human Rights, protecting freedom of expression, did not apply to anti-Semitism or Holocaust denial.

Originally Dieudonné was another boilerplate lefty-luvvie espousing the bog-standard views of his trade, which included, of course, support for Palestine. But he soon went beyond merely tweeting vacuous, anguished messages to take a more active role in politics, helping to form a political party (Les Utopistes) and standing against the Front National (notwithstanding his friendship with its former frontman Jean-Marie Le Pen) in the commune of Dreux. And as his pro-Palestinian stance has evolved from anti-Israel to anti-Semitic, so the importance he attaches to freedom of speech has grown. With typical luvvie understatement, Dieudonné described himself as ‘a slave to freedom of expression’ (‘je me sens enchaîné à cette liberté d’expression’) (1).

This has led to Dieudonné making regular court appearances in France and elsewhere. Most recently, Dieudonné was given a two-month jail sentence and a €9,000 fine by a Belgian court for making anti-Semitic remarks during one of his stage performances. This decision was almost identical to the Paris decision that resulted in Dieudonné bringing his case to the ECHR. Towards the end of a show in Paris in 2008, he invited on stage Robert Faurisson, an academic and fellow Holocaust denier. Dieudonné then awarded Faurisson the ‘prix de l’infréquentabilité et de l’insolence’ (‘the outcast and impertinence award’). It was presented to Faurisson by one of Dieudonné’s assistants, who was dressed in a concentration-camp uniform with a yellow badge. The award and the tenor of the performance was accused of mocking the Holocaust and being anti-Semitic. Dieudonné was subsequently fined €10,000 under an amendment to France’s press-freedom law, the Loi du 29 juillet 1881 sur la liberté de la presse.

The 1881 law was originally straightforward. The simplicity of its expression (Article 1 states simply that ‘L’imprimerie et la librairie sont libres’ – ‘printing and bookselling are free’) and its powerful, unalloyed protections of freedom of speech mirrored those of the US First Amendment. After the Second World War, however, successive French governments used amendments to the 1881 law to restrict free speech. These amendments prohibit not just Holocaust denial specifically, but the questioning of crimes against humanity in general. Dieudonné was further charged under Article 23 (incitement to racial hatred) and Article 29 (damage to honour or reputation of a person or group). The court found Dieudonné guilty of ‘délit d’injure’ towards the Jewish people (‘injure’ being the French term for offensive language).

Dieudonné’s 2008 performance was clearly grotesque and nasty – and, as freely admitted by Dieudonné himself, deliberately provocative. Nevertheless, parts of the French decision make for bizarre reading.

While the judgement begins by stating that even ‘provocantes ou grossières’ (‘provocative or coarse’) humour is an indisputable part of a free society, there was a big ‘but’: ‘The limits of the right to make jokes are particularly relevant to the dignity of human beings.’ Such a limitation would effectively inhibit almost every joke in history. In a further chilling passage, the court concluded that there are limits to the right of humour that justify the intrusion of the law (‘le prévenu a très largement excédé les limites admises du droit à l’humour’).

If the conclusion of the French court was that there are some things you are simply not allowed to make jokes about, the position of the ECHR was that if you don’t use free speech properly, then it will be taken away from you. The ECHR did not focus on the French court’s ruling that humour has its limits. Instead, it insisted that, following Faurisson’s appearance on stage, the evening had ceased to be a form of entertainment and had become a meeting (‘la soirée avait perdu son caractère de spectacle de divertissement pour devenir un meeting’). In the view of the court, the show had turned into a ‘demonstration of anti-Semitism and hatred’ (‘la Cour voit une démonstration de haine et d’antisémitisme‘). Because of this, the court held that Dieudonné had lost his Article 10 rights to freedom of expression.

That both the Paris court and the ECHR found Dieudonné and his views repugnant is clear. Yet the reasoning of both courts was curious and contradictory. The French court interpreted domestic law to suggest that jokes may not be made at the expense of the dignity of others, whereas the ECHR found that Dieudonné had stopped making jokes by the time of the problematic section of his show, and that he was therefore speaking in deadly earnest.

Perhaps the most astonishing sentence in the ECHR’s judgement, however, comes in paragraph 41: ‘The court considers that the applicant attempts to misrepresent Article 10’s purpose, using his right to freedom of expression for ends contrary to the text and spirit of the [European Convention on Human Rights] and, if admitted, would contribute to the destruction of the rights and freedoms guaranteed by the convention.’ (‘La cour considère que le requérant tente de détourner l’article 10 de sa vocation en utilisant son droit à la liberté d’expression à des fins contraires au texte et à l’esprit de la Convention et qui, si elles étaient admises, contribueraient à la destruction des droits et libertés garantis par la convention.’)

Here, the court suggests that Article 10 freedoms will only be recognised when what is said does not run contrary to either the words or the spirit of the convention. So not only does the ECHR make the convention a form of holy writ, the very words and spirit of which must be observed at all times – it also creates a judicially defined ‘safe space’ where no unsanctioned thoughts (or jokes) may be expressed without the culprit being cast beyond the legal, as well as social, pale.

Dieudonné is a highly unsympathetic character with repugnant views. His rants against Jews and ‘Jewish power’ make The Protocols of the Elders of Zion look like a credible statement of fact. Yet he retains and celebrates his status as a significant anti-establishment figure, and his credentials in this respect can only be enhanced among his followers as a result of the ECHR’s decision. But where does the true danger to European societies lie? In the rantings of Dieudonné or in the further undermining of one of the fundamental principles of modern civilisation, namely, freedom of speech?

Alexander Thompson is a non-practising barrister.

(1) All translations are by the author.