
By Jacob Mchangama
The abuse of “apology for terrorism” laws became particularly evident after Hamas’ attack on Israel on October 7. What if the cure was worse than the disease?
Article 11 of the 1789 French Declaration of the Rights of Man and the Citizen – the edifice of the French Revolution – guarantees all citizens the right to “speak, write and publish freely.” The Constituent Assembly disagreed on the extent of this freedom, inserting a vague clause exempting ‘the abuse of this liberty as determined by law”. Four years later, the Revolution descended into the Reign of Terror, where speech restrictions became routine. The “Law of Suspects” allowed arrests for language deemed supportive of tyranny or hostile to liberty. In 1794, the “Law of Great Terror” mandated the death penalty for speech crimes such as criticizing the National Convention, spreading false news, or undermining revolutionary principles. During this period, around 17,000 people were executed, many for political heresy. The Declaration still forms an integral part of French law. Yet, more than two centuries after the Terror, France continues to wrestle with how to counter the enemies of liberty while upholding the freedom of expression, stamped so prominently on its revolutionary birth certificate.
Waves of deadly Jihadist terrorism have led successive French governments to try and keep a sometimes-fragile social peace by clamping down on extreme voices. This includes increasing the use of the nebulous offense of “apology of terrorism”. However, there is mounting evidence that the cure has become worse than the disease when it comes to this provision’s collateral damage on free expression. For this reason, LFI has proposed to remove the crime of “apology for terrorism” from the criminal code and return it to the 1881 press (criminal) law, with the intent of providing stronger safeguards for free expression.
However, LFI’s proposal has been met with furious rejections. According to Les Républicains’ Othman Nasrou “Cette proposition de loi est indigne, c’est une insulte à toutes les victimes du terrorisme”. Interior Minister, Bruno Retailleau, described it as “innommable.” The cordon sanitaire around the LFI bill reaches across the political spectrum—Macronists as well as Socialists have voiced their strong opposition.
But the real problem with LFI’s proposal is not that it goes too far, it’s that it doesn’t go far enough. It is understandable that the French want to give no quarter to the jihadist ideology whose adherents has spread death and destruction across the Republic killing editors, cartoonists, teachers, priests, police officers and hundreds of ordinary citoyens. However, criminalizing “apology” – as opposed to “incitement” – of terrorism” opens the door for politization, abuse and the targeting of controversial but peaceful speech. This was clear even before this offense was moved to the criminal code in 2014.
Read MoreJacob Mchangama is the Founder and Executive Director of The Future of Free Speech. He is also a research professor at Vanderbilt University and a Senior Fellow at The Foundation for Individual Rights and Expression (FIRE).