Thursday, January 9, 2014

Judicial Error

The Conseil d'Etat, I'm afraid, has just played into the hands of Dieudonné by quashing the order to the administrative tribunal in Nantes to allow his show there to go on. This only lends credence to the claim of the comedian and his supporters that their voices are being suppressed. The pretext that the public order might be disturbed if Dieudonné is allowed to perform is foolish and pusillanimous, and the appearance that the separation of powers has been violated by government pressure on the Conseil d'Etat makes France look like a country in which governmental expediency will always trump the law when it comes to political speech. I think it's an unfortunate decision.

What this series of lamentable episodes--from Anelka to Dieudonné to the Conseil d'État--has revealed is that France is on the verge of another explosion of rage by people who feel they have no political voice. It's a pity that there is no civil rights movement worthy of the name and that no leader of stature has emerged to channel this anger into more productive channels. I shudder to think of what lies ahead.


Anonymous said...

Here is the Conseil d'Etat's opinion:
« Les allégations selon lesquelles les propos pénalement répréhensibles et de nature à mettre en cause la cohésion nationale relevés lors des séances du spectacle Le Mur tenues à Paris ne seraient pas repris à Nantes ne suffisaient pas pour écarter le risque sérieux que soient de nouveau portées de graves atteintes au respect des valeurs et principes, notamment de dignité de la personne humaine, consacrés par la Déclaration des droits de l'homme et du citoyen et par la tradition républicaine. »
The Conseil d'Etat is pointing to the basic requirement of protecting human dignity explicitly included in the the french bill of rights as a fundamental component of national cohesion. I think the Conseil d'Etat acted very much as the guardian of those rights in keeping with the separation of powers between the judiciary executIve.
Alain S.

Anonymous said...

I meant "between the judiciary and the executive
Alain S."

FrédéricLN said...

Two opinions: Eolas's beforehand thought a ban would be illegalé-%28mais-il-ne-faut-pas-l-écouter-non-plus%29 , Authueil's afterwards doesn't see any issue about the interdiction

Art Goldhammer said...

I agree with Eolas, although I take Alain S's point that the Conseil d'État was within its legal right to act as it did. Eolas, however, argued beforehand that the decision would be unwise, even if legally permissible, and I think he's right.

Cincinna said...

As a strong defender of freedom of speech for all, as laid out in the First Amendment and clarified in later Supreme Court decisions, I believe that liberty of expression is the core freedom for free people in a free society. Thus, the bright light of day is the best disinfectant for this poison; not banning it, suppressing it, or shutting it down.

FrédéricLN said...

Eolas makes an important point, noticing that the "dignité de la personne humaine" (human dignity) has only being used once as a legal basis to forbid something, namely, forbid throwing dwarfs. —Yes, if you saw "The Wolf of Wall Street", this is *now* forbidden in France—.

Is it a sound legal basis to forbid a one-man-show, or an extreme political speech presented as a one-man-show? I very much share Eolas's doubts.

As much as I'm disgusted by this speech, and consider it as against human dignity, I also think human dignity encompasses accepting that such speeches be held. Or, that human dignity is high enough not to be diminished by such speeches.

On another topic, Barack Obama said something like "not every mention of God threatens religious neutrality", I think something like that: not every public anti-Semitic speech threatens the fundamental rights of every citizen including Jews.

In any case, I consider it a grey area. At some degree, Dieudonné's or Dieudonné-like shows should be tolerated; at some other degree, they should be forbidden.

brent said...

Much as I share FrédéricLN's sentiments, I have to question his analogy: the state may seek neutrality on the question of God, but is most definitely NOT neutral about human dignity. And anti-semitic speech acts DO compromise human dignity and at some level threaten us all.

Here, however, I have to agree with Cincinna (!), or at least share her endorsement of Justice Holmes's formula: democracies have to tolerate verbal assaults on their core values, including human dignity, and it the duty of us all, not to compromise democracy by banning hateful speech, but to shine that disinfecting light and crowd out that bad speech with good.

The Conseil d'Etat seems to have lost its way here, responding to political expediency instead of principle, and contriving a legal precedent that may do more harm than good in the long run.

FrédéricLN said...

brent: you express it much better than I could — I agree in full.

Gwenael HENRY said...


One partial point of view here (in french)


Henri Rouquier said...

Too bad nobody is mentioning an important thing about the Conseil d'Etat.

This is not America: The Conseil d'Etat is a Supreme Court, but not to be the one defined Art. III of The US Constitution.

It perfectly depicts all the ambiguities of the separation of power in France in particular, and Europe in general, as the President of the Conseil d'Etat is the Premier Ministre (Head of government or the Ministre de la Justice (Head of Justice department)...

According to the Conseil d'Etat, it's Vice-President, is the acting president. I ought also to mention that the Conseil d'Etat was a creation of Napoléon, not precisely known as a founding father of democracy and separation of political powers in France and in Europe.

Trying to justify the Dieudonné ruling yesterday in an interview published in Le Monde, the vice-president of the Conseil d'Etat went as far as pretending (8th question) that Justice is not a political power.

The separation of power do not exist in France, and generally in Europe. The Le Monde journalist, a good breed of our Education Nationale, didn't even mention the possibility that not only the Conseil d'Etat is, like any supreme court of justice, a political power, but it is moreover a political power without any resemblance of democratic legitimacy.

PS: From Paris with love. excuse my French.

FrédéricLN said...

Yes, the confusion of roles at Conseil d'Etat is one of the sad limitations to democracy in France.