The ‘Boutin affair’: a half-hearted judgment for freedom of expression

Leaving lingering doubts about the scope of freedom of speech, the Supreme Court returned a half-hearted judgment in the Boutin affair on 9 January 2018.¹ Without guaranteeing greater protection under the law, it thus opens the way for new legal disputes on the subject.

For the High Court, it was a matter of determining whether the comments made by Christine Boutin, former minister and MP, during an interview with the magazine Charles in April 2014 under the heading ‘I am a sinner’ could be described as a ‘provocation to hatred or to violence’ towards homosexuals.

The following comments: ‘homosexuality is an abomination. But not the person. The sin is never acceptable, but the sinner is always forgiven’ had triggered proceedings by several associations defending the rights of LGBT people (Mousse, Le Refuge, Inter-LGBT) who had instituted a civil action for damages.

On 18 December 2015, the criminal court of Paris had fined Mme Boutin 5000 Euros for provocation to hatred and violence. A decision confirmed on appeal by the Court of Appeal of Paris on 2 November 2016, who added 2000 Euros to the fine as damages for the associations, the plaintiffs.

On the appeal of Mme Boutin to overturn this decision, the judgment of 9 January 2018 rejects (without retrial) the decision of the Court of Appeal, thus lifting Christine Boutin’s whole conviction, on the grounds that:

‘the incriminating comment, if it is offensive, nevertheless does not contain, even in implicit form, an appeal to or exhortation to hatred or to violence with regard to homosexuals.’

This decision can be considered as a first victory for defenders of freedom of expression and of conscience, in particular concerning the option of quoting a verse from the Bible about homosexuality, as it happens a verse from the book of Leviticus. The Supreme Court has rejected the argument advanced by the Court of Appeal of Paris according to which the quotation from Leviticus is in itself a propagator of a ‘feeling of hatred’².

The precision afforded by the words ‘even in implicit form’ confirms the objective analysis of the Supreme Court concerning the incriminating comments. Do the comments in themselves constitute a provocation to hatred or to violence? That was the real question. In this regard, the Court thus rejected a subjective understanding of the crime of provocation to hatred or to violence and every attempt by the plaintiffs to draw deductions or insinuations detached from the facts and from the very nature of the comments.

That being so, the reasoning of the Supreme Court does not come out in favour of either party, leaving no one as the real loser.

Regarding the legal classification of the remark of Mme Boutin, the Court concedes from the start that it may be ‘offensive’ and thus seems to indicate that another criminal classification, that of public insult, could have justified condemnation³.

The limitations period of one year to pursue public insult having expired, there is no question of re-opening the case of Mme Boutin, who has well and truly won on appeal. However, the concession of the Supreme Court leaves to its opponents prospects of future disputes and does not, as was expected on both sides, make it possible to strengthen protection under the law in respect of freedom of expression.

Unlike provocation to hatred and to violence, public insult infers a more subjective dimension. In France, public insult is defined as ‘any offensive phrase, expression of contempt or verbal abuse which contains no facts’ (article 29 of the law of 29 July 1881). It is punished, just like provocation to hatred and to violence, in the case of comments relating to the sexual orientation of people, by one year’s imprisonment and a fine of 45,000 Euros (article 33 of the law of 29 July 1881).

However, concerning the intentional element of the offence, case law allows the presumption of guilt, the perpetrator being therefore presumed aware of the offensive nature of his comments or of the violation of the honour of the victims. The burden of proof of the absence of intention to harm rests firmly therefore on the author of the comment. With equal penalties, it seems that public insult is thus simpler to pursue than provocation to hatred or to violence.

By dismissing the legal classification of provocation to hatred or to violence while alluding to that of public insult, the Supreme Court is blowing both hot and cold.

Thus, quoting Leviticus constitutes, in itself, neither the provocation nor the propagation of a sense of hatred with regard to homosexuals. On the other hand, depending on the comments and the circumstances of the specific cases, one should not dismiss too hastily the risk of criminal conviction for public insult⁴.

Our advice:  Besides ensuring that the material element, i.e. the comments remain intrinsically respectful of people, one should make sure that the intentional element of the offence is clearly removed, i.e. that it can be clearly demonstrated that there is no desire to hurt, to despise or to offend or to damage the honour of people. Love of our neighbour ought to preserve us from that.

One decade after the Vanneste Affair (Supreme Court, 12 Nov 2008)⁵, the Court seems to be changing direction in its defence of complete freedom of expression, through the reserve it has expressed and its openness towards the classification of public insult. For want of providing more protection under the law for freedom of expression, the Supreme Court, by way of questions about the legal classification of offences of expression, is unfortunately opening the field to new disputes⁶.

As defenders of freedom of speech, we would have hoped for a judgement fully in favour of freedom of expression, without concession.

Let’s remember that in the context, Mme Boutin included herself in the group to which we all belong – sinners, ‘always forgiven’, and that the intention to harm was in all likelihood not present in her comments. We will have to await the outcome of new, distressing affairs in order to draw more calmly the contour lines of freedom of expression, so precious to the pluralism of our democracy.

Nancy Lefèvre, legal expert of the CNEF (Conseil National des Evangéliques de France – National Council of Evangelicals of France).

NOTES

1 As the judgment has not been published yet, our analysis relies on the information in our possession via the press.

2 Grounds for the judgment of the Court of Appeal of Paris: ‘The language of Leviticus used by Christine Boutin condemns to death homosexuals on account of their sexual behaviour’, ‘using this language inevitably takes us back to a condemnation of extreme violence, leaving no place for pardon, inciting religious extremists to reject homosexuals and to feel a sense of hatred towards them.’

3 Concerning the term ‘offensive’, it is not to be confused with crimes of contempt shown towards a custodian of public authority or a person charged with a mission of public service or towards magistrates, jury members, persons taking part in legal training (art. 433_3 et 434-24 of the Penal Code).

4 Or private insult, for that matter (Article R625-8-1 of the Penal Code)

5 Vanneste Affair, Supreme Court, Crim., 12 November 2008, appeal n° 07-83398. In January 2006, the politician Christian Vanneste had been sentenced to a fine of 12,000 Euros for criticising homosexual behaviour. In the National Assembly and then in the media, Christian Vanneste had expressed remarks according to which heterosexuality was morally superior to homosexuality. Three associations defending the rights of homosexuals had taken legal action against him. MP Vanneste had then been found guilty, in the initial trial and on appeal, of violation of the law of 29 July 1881 on the freedom of the press. In November 2008, after almost four years of legal proceedings, the Supreme Court quashed the decision of the Court of Appeal, judging that freedom of expression and the law on freedom of the press had not been applied correctly. The Court clarified that ‘if the litigious comments, which had been expressed in the latter part of the debates and of the vote on the law of 30 December 2004, were capable of offending the sensitivity of certain homosexuals, their content does not exceed the limits of freedom of expression.’ Offending people’s sensitivity then remained within the bounds of legality, unlike insult, since the ECHR (European Convention on Human Rights; French – CEDH, Convention Européenne des Droits de l'Homme) acknowledges within freedom of expression the right to express ideas ‘which hurt, shock or disturb the State or one section of the population’ (ECHR Handyside c/RU, 7 December 1976, § 49)

6 As, incidentally, the lawyer of Mousse, Mr Deshoulières, notes explicitly, ‘The time has lapsed. However, if tomorrow someone says that again, the associations will have heard the instruction of the Supreme Court and will sue for “insult”.’ (http://www.lemonde.fr/societe/article/2018/01/09/propos-sur-l-homosexualite-la-cour-de-cassationannule-la-condamnation-de-christine-boutin_5239508_3224.html#V0ztWdGhXSyBjk6T.99)