Monday, July 2, 2007

Free Speech?

On Saturday, I mentioned that UMP deputy Christian Vanneste was the first person in France to be sentenced under the law of 30 December 2004, which makes it a criminal offense to discriminate against homosexuals or make homophobic statements. Vanneste was found guilty of "insults based on sexual orientation." He was sentenced to pay a fine of 3000 euros, damages in the same amount to the parties civiles in the case (3 gay rights organizations), and court costs.

The judgments of the several courts involved in the case can be read here. Vanneste criticizes homosexuality not on religious but on philosophical grounds. He argues first that sexual orientation is "a free choice, not a fate." He sees it, moreover, as an individual choice, to be assumed as such, rather than as a title to membership in a "community" with a claim to particular social rights or status. "I do not call for stigmatization or punishment," he says, but merely "discretion." He further contends that the homosexual "choice" is "inferior" to the heterosexual one because it "cannot be universalized." Or, more precisely, if it were universalized, it would be a "threat to humanity." But such a "threat" is to be regarded as hypothetical; it does not mean that he considers homosexuality "dangerous." He adds that he regards organizations representing gays as "sectarian" rather than representative.

These, in bald summary, are the facts on which Vanneste was tried and found guilty. The appellate court recognized the "philosophical" character of Vanneste's remarks but nevertheless found them susceptible of inciting hatred of homosexuals and therefore upheld the conviction.

This judgment comes as something of a shock to an American observer who is a card-carrying member of the ACLU, which vigorously defends the right of free speech, and who is old enough to remember that the political upheaval of the 60s began with the Free Speech Movement. The Franco-American contrast in this case strikes me as no less stark and no less interesting than in the matter of the foulard islamique. To my knowledge, it has not been much studied by scholars. I think it would repay scrutiny, along with other restrictions on free speech in France and other European countries.


Quico said...

I smell a ECHR appeal...

Daniel Gordon said...

Art's remarks here on free speech are very good. Textbooks on comparative law now underline the stark differences between American and European free speech laws--see for examples, Comparative Constitutionalism, ed. Baer, Dorsent, et al. The main difference, from a strictly legal perspective, is that European law protects the "dignity" of individuals and groups, whereas American law, less dignify-centered, defends the "liberty" of individuals above all. At a cultural level, a key difference is that in the U.S. we tend to see speech as non-material--sticks and stones can break my bones by names can never hurt me. In other societies, it's clear that language is regarded as a vital force, a power, a potential to harm. Daniel Gordon