This is my translation of an article on freedom of expression (Fr. liberté d’expression) by sociologist and demographer François Héran. Composed as an address to history and geography teachers in France in the wake of the murder of Samuel Paty, the article was published on October 30, 2020 in La Vie des Idées, the online journal of the Institut du Monde contemporain of the Collège de France. This is the first part of my translation of the article. My thanks to Éditions La Découverte for their permission to publish this translation on my blog.
French article by François Héran
English translation by Urmila Nair.
Date of publication: October 30, 2020.
How does one teach freedom of expression? By teaching its history, proposes François Héran, a history that is a lot less republican and a lot more respectful of religious beliefs than one would imagine. Instead of making it an absolute, it is time we recognized that the conditions of its exercise unfold in particular times and places.
Several teachers of history and geography have consulted me on the matter of the moral and civic education class they will have to teach once the All-Saints holidays come to an end. How does one pay homage to Samuel Paty who was so horrendously killed on October 16 by a young Chechen jihadist because he had discussed in class the caricatures of Muhammad? What meaning should one attribute to the notion of freedom of expression? How may one defend republican values without isolating France? Certainly, teachers will benefit from the official “guidelines” prepared by the Ministry of National Education. Certainly, they can draw inspiration from the impassioned homage paid by President Macron during the ceremony held at the Sorbonne. And, if they wish, they can turn to the letter to teachers written by Jean Jaurès. However, if freedom of expression is indeed dear to us, we must also be able to think about it freely, provided that we rely on verified information. This is the sense of the counsel that I seek to offer here.
A return to texts
A first piece of advice: let your students discover “republican” texts, which have remained in the shadows to some extent in recent times. More often cited than read, Jules Ferry’s letter to teachers for instance, written on November 17, 1883, poses limits to the teaching of morals:
“Ask yourselves if a father–I say a single one–present in your class and listening to you, could in good faith refuse his assent to what he would hear you say. If yes, abstain from saying it; if no, speak undauntedly.”1
On March 11, 1882, in the throes of discussions about the law introducing compulsory education and laïcité (secularism) in public primary schools, Ferry had gone even further:
“If a public schoolteacher were to forget himself and teach in his school a topic that was hostile, outraging the religious beliefs of anyone, he would have to be reprimanded as swiftly and severely as if he had committed that other misdeed of beating his students or of perpetrating abuses against them.”
You read that right: outraging the religious beliefs of students is as serious as inflicting corporal punishment or abuse.
Must we conclude from this that all religions merit respect? Yes, responds Article 1 of the French Constitution of 1958:
“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.”
The last sentence is liable to shock in the present context. Some may dream of modifying it and of affirming that the Republic “shall not respect any belief.” For the time being though, this is the text of our Constitution.
What then of “freedom of expression” (Fr. liberté d’expression), that supreme value of the Republic? With all the tact required, you will explain to your students that French law does not literally enshrine “freedom of expression”: the law of 1881 applies to freedom of the press. Other texts invoke freedom of opinion or conscience. The notion of “freedom of expression,” however, goes further: it includes all possible topics and media, and possesses a more individualist dimension. Its contours are so indefinite that it is almost a synonym for freedom itself. As per French vocabulary databases, compiled from millions of texts printed since 1730, “liberté d’expression” did not take off in common and legal parlance until after the Second World War. It was unknown under the Third Republic where it was employed in an aesthetic sense (for example one could paint a subject with great “liberté d’expression”).
The notion appears for the first time in the 1948 Universal Declaration of Human Rights, coupled with freedom of opinion:
“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”
The text was drafted by Canada’s John Peters Humphrey, Director of the United Nations Division of Human Rights, and revised by France’s René Cassin, Representative on the Drafting Committee to the Commission on Human Rights. “Liberté d’expression” is the French version of the English “freedom of expression.” It was only in 1950, in Article 10 of the European Convention on Human Rights that the term “liberté d’expression” first appeared by itself in all its plenitude and with its present meaning2.
We in France imagine that our highest values are all “republican” in origin, owing nothing to the Anglo-Saxon world which we unhesitatingly treat as a foil. This is inaccurate and students should know it. The notion of freedom of the press (liberté de la presse) is itself not the fruit of the French Revolution, and even less that of the 1881 law on the freedom of the press. We owe this notion to the Virginia Declaration of Rights, adopted in 1776, a document that influenced the rest of the United States and then the occidental world.
Rights and duties that accrue with freedom of expression
On freedom of expression, it is eminently worth one’s while to read–provided that one reads it to the very end–the opinion piece that appeared in Le Monde on October 26, 2020, written by Christophe Bigot, specialist in media law and legal representative of various media groups. Citing the famous Handyside case that was decided on December 7, 1976 by the European Court of Human Rights, Bigot writes:
“Freedom of expression is an essential part of the foundations of a democratic society, crucial to its progress, and to the flourishing of the individual. Subject to the restrictions mentioned, particularly in Article 10 of the European Convention on Human Rights, freedom of expression is important not only in case of information and ideas received with favor or viewed as inoffensive or with indifference. It is also important in case of information and ideas that offend, shock or disquiet the country as a whole or some section of the population. This is what pluralism, tolerance and openness require, without which there can be no democratic society.”
If one wishes to honor the memory of Samuel Paty, concludes Bigot, one must consider this principle, laid down in the Handyside case, as an “intangible ideal.” Note in passing that Bigot speaks of democracy and not of the Republic. The latter is, of course, only a variant of democracy.
Ask your students then to read Article 10 of the European Convention on Human Rights. It states:
“Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. […]”
But then there is the second paragraph:
“The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others […].”
There is a long list of “duties and responsibilities” that frame freedom of expression. Who defines these duties and responsibilities? It is up to each country to do so. The European Court of Human Rights does not judge in the place of sovereign States. It checks that they regulate freedom of expression in a manner proportionate, as it were, to their own legislation and to the state of morals. In the 1976 Handyside case cited by Bigot, the Court’s conclusion was that the British authorities had in no way violated Article 10 of the Convention in ordering the seizure and destruction of a schoolbook on sex education, aimed at children and judged contrary to British morals! It is therefore paradoxical to invoke this decision to honor the memory of Samuel Paty. If this decision must hold students’ attention, it should be with regard to one point precisely: freedom of expression can include the expression of shocking and hurtful ideas, but always within the conditions permitted by the law.