The French Flag is Burning: No Pictures Please!

I wrote last week about a French bill which aims at suppressing the crime of offending the French President, and noted the differences in this matter between the U.S. and the French law.

Well, here is another example of these fundamental differences on the point of freedom of expression. Another French bill, this time sponsored by Senators on the right side of the political spectrum, proposes to criminalize the act of publicly insulting the flag or the national anthem, or to publish an image inciting others to publicly insult these two symbols.

Currently, article 433-5-1 of the French criminal Code punishes by a fine of €7,500 the act of publicly insulting the French national anthem, or the French flag, at a demonstration organized or regulated by the public authorities.

This article was added to the criminal Code by a 2003 law, which has been declared constitutional by the Conseil Constitutionnel in a March 13, 2003 decision. However, the Council noted that works of the mind were excluded from the scope of article 433-5-1, as were private acts and public acts performed at events not organized by public authorities nor regulated by them.

This decision limits considerably the scope of article 433-5-1. In so many words, it is illegal to insult the flag on Bastille Day while watching the military parade on the Champs Elysées, but it is still legal to do so in one’s own backyard, or at the annual meeting of one’s bridge club. It is also legal if this insult is a work of the mind, that is a work protected by Intellectual Property.

The 2010 bill would considerably enlarge the scope of article 433-5-1 as it would criminalize offering, making available, or disseminating an image or a representation of contempt for the French flag or the national anthem, when such actions incite someone to commit the offense of publicly insulting these symbols.

Why all this legislative activity? It is the answer to a photographic contest organized earlier this year by FNAC, a famous chain of media stores. One of the winning pictures showed a man, standing with his back turned toward a wall, using the French flag to wipe the part of his body one commonly uses to sit down.

Publishing this image is fortunately still legal in France, as it was not done in the course of a public demonstration. The new bill would, as I read it, make it illegal to publish and disseminate this image only if such publication or dissemination incites someone to commit an offence publicly.

First question: how could one possibly prove such crime? It would be very difficult to prove causation, unless the suspect confesses that, after viewing such photographs, he had the sudden urge to rush outside and publicly offend the flag or the national anthem.

Second question: does this mean that every image showing the flag being insulted will be deemed to incite the viewer to insult it in public? That would show a very poor respect of the free mind of the viewer, and would completely ignore the 2003 Conseil Constitutionnel’s decision.

It is highly ironical that France,a country proud of its image as a country defending human rights, would make a crime to insult the flag or the national anthem.

Although many in the U.S. have tried to amend the Constitution and make flag-burning unconstitutional, burning a flag is legal in the U.S. The U.S. Supreme Court held 5 to 4 in 1989, in Texas v. Johnson, that burning a flag is an expressive conduct protected under the First Amendment. In an often-quoted phrase, Justice Brennan wrote that “If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

The French government would be well inspired to meditate on that statement.