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French police and anti-crime brigade (BAC) secure a street they carried out a counter-terrorism swoop at different locations in Argenteuil, a suburb north of Paris, France, July 21, 2016. REUTERS/Charles Platiau

Should someone go to prison for calling terrorists “courageous” even though they also express fundamental disagreement with their ideology? France’s answer since the Charlie Hebdo attacks in 2015 has increasingly been: Yes. Seizing on a criminal provision enacted in November 2014 that criminalized “apology for terrorism,” French prosecutors have been aggressively pursuing anyone who speaks positively of a terrorist act or group even if their intention is not to incite violence or promote the group.

On May 18, the French Constitutional Court rejected a challenge to the law, shooting down the assertion that the law is too vague and violates freedom of expression.

While the offense of “apology for terrorism” existed in France since the French press law of 1881, its enforcement was restricted and subject to various safeguards until the November 2014 law transferred it to the French Penal Code. Since then, Penal Code Article 421-2-5 specifies that this crime is punishable by up to five years in prison and a fine of up to €75,000. Offenses committed online can lead to seven years in prison and a €100,000 fine.

Following the Charlie Hebdo attacks in January 2015, the justice minister at the time issued a directive to prosecutors to show great “vigor” in combatting “reprehensible” and “hateful” speech, and appended an annex laying out the elements of the crime of “apology for terrorism.” Subsequently, the number of arrests and convictions for this crime have increased exponentially.

Interior Ministry statistics show that the police intervened in more than 2,300 cases in 2015 and 1,850 in 2016. While not all police interventions led to prosecutions, Justice Ministry statistics cite 306 convictions for apologies for terrorism in 2016 alone, with prison sentences for 232 of those.

Many of those caught up in the new law are minors. French Interior Ministry figures show that 20 percent of those investigated under this provision in 2016 were minors – and 6 percent were between the ages 10 and 14.

The cases do not typically involve direct incitement to violence but usually revolve around drunken interactions with the police or provocative – and sometimes obnoxious – statements in school courtyards or on social media. Most do not gain national notoriety and are handled by local courts in summary proceedings.

The case that led to the constitutional challenge was different. It involved Jean-Marc Rouillan, a prominent former member of Action Directe, a French far-left extremist group that carried out a series of assassinations and violent attacks in France in the 1980s. In a radio interview in February 2016, Rouillan said that the men who carried out the November 2015 terror attacks in Paris, which killed 130 people, had fought “courageously knowing that there were 2,000 to 3,000 cops around them.” Rouillan was clear in expressing his hostility to the attackers’ ideology, nor did he call for any violence. But for this speech, Rouillan was sentenced to 18-months in jail – though he will probably be able to replace the jail time with noncustodial alternative punishment.

Two months ago, following an attack on a supermarket in which the store butcher was among those killed, a vegan activist was given a seven-month suspended sentence because she posted on social media the following comment about the butcher’s death: “It shocks you that an assassin is killed by a terrorist? Not me, I have zero compassion for him. There is justice after all.”

These comments are insensitive and obnoxious. As one prosecutor noted in another case, “Words should not be trivialized.” But is criminalizing such words appropriate – much less the best way to counter them?

The risk is two-fold. This approach can create an environment in which people are afraid to question or challenge prevailing opinions, express unpopular views, or even make controversial jokes. The right to hold obnoxious views and offend has always been a key part of freedom of expression. Indeed, if freedom of expression applied only to views deemed acceptable or majoritarian, it would be stripped of its essence. The irony that the fervor for these prosecutions is in part a reaction to the January 2015 attack on Charlie Hebdo, a publication that became a symbol of freedom of expression because it insisted on its right to be irreverent and insensitive, seems to have been missed by France’s Constitutional Court, as well as the broader public debate around these provisions. In addition, in an era of impulsive statements on social media, police investigations or criminal sentences that carry the stigma of counterterrorism can easily become disproportionate.

The trend of criminalizing statements that do not go so far as to incite or promote violence or terrorist acts, but might present them positively, has been gaining traction across Europe. The United Kingdom and Spain have laws criminalizing “glorification” of or “apology” for terrorism, and such laws have been proposed – though not adopted – in Belgium and the Netherlands. The European Union Directive on combating terrorism, adopted in 2017, contains a vague offense of “public provocation to commit a terrorist offense” and expressly refers to “glorification” as an example of expression that may be criminalized. By the end of this year, every single EU member state will be required to have incorporated those provisions into their domestic law, if they have not already done so. We will be seeing more cases like this soon enough elsewhere in Europe.

This trend has been described as “troubling” by the office of the UN High Commission for Human Rights. International experts on freedom of expression issued a rare joint declaration in 2006 to remind countries that criminalization of speech should be limited to cases in which there is incitement or promotion of terrorist acts. They defined that as “a direct call to engage in terrorism, with the intention that this should promote terrorism, and in a context in which the call is directly causally responsible for increasing the actual likelihood of a terrorist attack.” International norms are clear: Statements that merely offend the sensibilities of society, including the victims of terrorist acts, should not be criminalized.

But France, and increasingly other parts of Europe, are moving away from this standard. French lawyers looking to challenge the law may now consider applying to the European Court of Human Rights, which might lead the pushback against these unjustified interferences with freedom of expression. That Court has made it clear time and time again that the right to free speech under the European Convention on Human Rights “is applicable not only to ‘information’ or ‘ideas’ that are favorably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock, or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’….”

One hopes that given a chance to rule on this overly broad criminalization of speech, the European Court of Human Rights would reach a similar conclusion again.

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