By Peggy Sastre
Since October 7, 2023, and the terrorist massacre perpetrated by Hamas in Israel, and since the obscene jubilation that has all too often accompanied it, even in the comfort of our own societies, antisemitism has resurfaced in France. It wears that familiar, simultaneously archaic and very contemporary face : brutal, mimetic, and adaptable. Faced with the suffering of its victims, the reaction of some of our representatives stems from a human impulse and, so to speak, a political obligation: something must be done, quickly, decisively, and visibly.
It is in this climate of shock and disbelief that Bill No. 575, introduced by Caroline Yadan, the Renaissance party deputy for the 8th constituency representing French citizens living abroad, is being presented. This bill is intended to address the “renewed” forms of antisemitism. Since hatred disguises itself , is implied, and shifts to the realm of allusions, analogies, and reinterpretations, the net must be widened. Thus, the bill proposes to broaden the offense of glorifying terrorism to include “indirect” provocations, to punish the “minimization” or “trivialization” of terrorist acts, and to sanction the denial of the State of Israel or its comparison to Nazi Germany.
And here we are again. To a very real barbarity, we hear the response, once again, of a tightening of criminal law in general, and, in particular, of yet another curtailment of freedom of expression.
“We must start with a simple observation,” commented Jacob Mchangama, a legal scholar and professor at Vanderbilt University (Nashville, USA), one of the world’s leading experts on the subject, to Le Point. “Since October 7, the resurgence of antisemitism in France, as elsewhere, is very real and deeply alarming. Its consequences are unacceptable, particularly for European Jews, who have no connection to the conflict in the Middle East but nevertheless suffer its terror and violence. In Denmark, my native country, intelligence services even advised Jews to cancel planned gatherings for fear of terrorist attacks. The emotional urgency underlying this proposed law is therefore perfectly understandable.”
Indeed, as he elaborates in his recent The Future of Free Speech (Johns Hopkins University Press, not translated), co-authored with Jeff Kosseff, a law professor at the United States Naval Academy, “hate speech laws almost always arise from genuine fear and outrage, before going far beyond their initial objective, without addressing the underlying problem they were supposed to solve.”
The problem, and it’s a major one, is that France already has one of the most extensive legal arsenals in the democratic world regarding hate speech and the glorification of terrorism. “If these laws were effective, why does antisemitism continue to rise in France?” asks Jacob Mchangama. The question is obviously rhetorical, and it’s said that madness lies in believing that the same causes will ultimately produce different effects—with antisemitism still on the rise, it’s unlikely, to put it mildly, that an additional layer of criminalization will succeed when previous measures have failed.
According to Jacob Mchangama, echoing many concerns among those – liberals, but not only – who know that little is gained and much is lost by undermining the fundamental principles of freedom of expression, “extending the scope of the incrimination of direct incitement to ‘implicit provocation’, penalizing ‘trivialization’, prohibiting certain historical analogies: all of this will very likely have deleterious effects on freedom of expression and will encourage self-censorship in important political debates, starting with those concerning the Middle East, a subject that deeply fractures public opinion.”
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Jacob 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).