TCS Daily

Freedom, But...

By John Rosenthal - February 9, 2006 12:00 AM

As was to be expected, this past weekend French Islamic and self-styled "anti-racist" groups announced their intention to press charges against the newspaper France Soir for "incitement to racial or religious hatred" in connection with the daily's re-publication of the now famous Muhammad cartoons from the Danish newspaper Jyllands-Posten. What was not to be expected is that they might be able to cite a US State Department declaration as supporting evidence at trial.

The initial reactions of official France to the cartoon controversy made immediately clear that the French executive and leading elements within the French government did not consider the publication of the cartoons to fall necessarily under the protections afforded the press by French law. When confronted last fall by complaints from Muslim countries about the original publication of the cartoons in Denmark, Danish Prime Minister Anders Fogh Rasmussen responded with a vigorous defense of freedom of the press. "Some people say that the press needs to be constructive," Rasmussen remarked, "and sometimes I also think that'd be nice. But who's to say what's constructive?" In marked contrast to the unambiguous stance of the Danish leader, the publication of the cartoons in France elicited a veritable chorus of "freedom, but" responses, with one official after another apparently emphasizing the fundamental importance of freedom of the press for the French Republic - only in order then to set in relief possible motifs for limiting it.

Thus French Prime Minister Dominique de Villepin commented: "We are very attached to the requirement of freedom, to the requirement of democracy that is the foundation of that on which our country is based [sic], but also to that of respect." President Jacques Chirac echoed the sentiments of his prime minister, likewise "recalling" that freedom of expression was one of the "foundations" of the Republic, and "therefore" appealing for a greater "spirit of responsibility, respect and moderation, in order to avoid anything that could hurt the sentiments of someone else." Speaking to the French television news channel LCI on Friday, French Foreign Minister Phillipe Douste-Blazy joined the chorus of "freedom, but" and went a step further than his colleagues, openly brandishing the threat of legal action against France Soir. "Freedom of expression is one of the founding principles of the Republic," Douste-Blazy sagely noted, before adding: "but within a framework, a limit: that of the laws of the Republic." "Those who feel they have been caricatured," Douste-Blazy advised, "can make queries of the judicial system. It's their liberty to do so." Among the leading representatives of the French government, only French Interior Minister Nicolas Sarkozy refused to join the chorus. "It's better to have too much caricature than too much censorship," he observed.

The most surprising member of the "freedom, but" chorus, however, was the US State Department. Starting on Friday afternoon Paris time, the French media were flooded with reports of a State Department "condemnation" of the Muhammad cartoons. The evident source of the reports was the French wire service AFP. The reports cited a State Department official by the name of Justin Higgins employing a phraseology remarkably similar to that of the French president and prime minister: "We all recognize and we completely respect freedom of the press and expression, but [my emphasis] it should be accompanied by press responsibility." Even more astonishingly, Higgins was quoted as saying the cartoons constituted an "unacceptable incitation of religious and ethnic hatred."

When the same remarks appeared shortly later, attributed to three different State Department press officers, in a series of otherwise virtually identical English-language reports by the AP, Reuters and again the AFP, they provoked reactions of bewilderment from broad sections of the American public. Especially in light of the obviously anodyne character of several of the cartoons, which had already been widely circulated on the Internet, to talk of "inciting religious and ethnic hatred" seemed to involve craven pandering to the - quite possibly, artificially - enflamed passions of the Arab street. The French public, however, will have understood something by the phrase that Americans, as a rule, would not: namely, the implication that in publishing the cartoons France Soir had committed a crime.

In English, the phrase "incitation of religious and ethnic hatred" is decidedly uncommon and, other than to specialists in comparative law, it will be largely unfamiliar. In French, however, the phrase and similar expressions like "incitation of racial hatred" have become thoroughly banal. This is because in French law - as in the legal systems of numerous other European countries - "incitation" to racial, religious or ethnic "hatred" constitutes a crime. Recent years have witnessed a series of high-profile court cases in which persons of considerable public notoriety have been tried on "hate speech" charges. These include not only National Front leader Jean-Marie Le Pen, but also, for instance, France's most celebrated contemporary novelist, Michel Houellebecq, who was tried, but acquitted, after having described Islam as "the dumbest religion." Significantly, the definition of this crime - and the punishments applicable to it - are laid out in the French law on freedom of the press. Indeed, throughout Europe, "hate speech" laws are currently being promoted - for instance, by EU Media and "Information Society" Commissioner Viviane Reding - as a "necessary" limitation on press freedoms and, more generally, freedom of expression.

Justin Higgins, the State Department source cited in the AFP report, was presented in the French media as "the" spokesperson of the State Department - he is in fact one press officer among many others - and his comments were construed as representing the official US government position. The French weekly Le Nouvel Observateur includes, for instance, the following entry under Friday, February 3 in its "hour by hour" (sic) timeline of the controversy: "16:35 Washington The United States condemn the publication of the controversial cartoons of the Prophet Muhammad as constituting an 'unacceptable' incitation to ethnic or religious hatred." It was presumably at that time - i.e. 16:35 Parisian time, 10:35 in Washington - that the AFP received a response to an inquiry to the State Department press office. The State Department made no official announcement at the time and its daily press briefing, where the subject of the cartoon controversy was addressed by the actual State Department Spokesperson Sean McCormack, took place precisely 2 hours and 23 minutes later.

As many American observers noted with relief, what McCormack had to say about the controversy, in effect, reversed the accents of the earlier statement. Yes, McCormack allowed, "we" found the cartoons "offensive", but "we defend the right of ... individuals [with whom we disagree] to express their views. For us, freedom of expression is at the core of our democracy and it is something that we have shed blood and treasure around the world to defend and we will continue to do so." McCormack made no mention of "incitation". And when a reporter seized upon his own passing use of the term "unacceptable" in order repeatedly to ask whether this meant that measures should be taken against those disseminating the cartoons, he just as repeatedly responded that no, it did not mean this.

Which of the two statements represents the American government's position? When I posed this question to State Department press officer Janelle Hironimus - one of the three sources cited in the original wire service stories - she stressed that McCormack's remarks at the press briefing take precedence over any other statements. "He is the spokesman," she said pointedly. However, my request for clarification as to whether the State Department stands behind its earlier remarks about "incitation" has remained, as of this writing, unanswered.

This is unfortunate. Especially in light of the wide publicity it received, both in America and overseas, the damage done by the earlier statement will not be undone simply be pretending it never happened. The statement did a disservice to America, in the first place, because it did a remarkable disservice to one of America's strongest allies: namely, Denmark, which has not only stood by America in Iraq, but whose government has bravely stood up for the same principles of free expression that Americans cherish and has reaped the whirlwind as a result. More fundamentally, the statement did a disservice to America, because it bizarrely seemed to take French legal principles and political priorities as its reference, rather than precisely American ones.

This latter point raises an additional question: just why on the morning of February 3 did three State Department officers, under guidance undoubtedly from departmental superiors, seem, in effect, to be speaking French rather than English? We will probably never know the answer to this question. However, the chronology of events and other considerations suggest essentially two possible scenarios: either (1) elements in the State Department are so enamored with contemporary European legal trends that they spontaneously give them precedence over America's own legal traditions and - to put matters more bluntly - laws or (2) the AFP - whose status as, for all intents and purposes, an organ of the French state is beyond doubt (see here and here for details) - approached State on Friday morning not only with a question..., but also with the response that it wanted to the question. From the point of view of an American citizen - who has the right to expect that his government will not only defend America's interests, but also Americans' democratically-expressed choices - neither possibility is particularly flattering for the State Department.

John Rosenthal's writings on international politics have appeared in Policy Review, the Opinion Journal, Les Temps Modernes and Merkur. He is the editor of the Transatlantic Intelligencer ( His email is

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