Monday, December 28, 2009

Faurisson v. France- The Case Against Free Speech

Our future president, and world leader, has been supremely outspoken about is fondness of Europe (France), World Government (EU and the UN) and Political Correctness (Anti Free-Speech). This is a case study about the implications of political correctness and world government on free speech. This article will show that there is no international support for freedom of speech, one we start taking it away from out nation it is gone forever. The case concerns a man who is fined for expressing his opinion. The case is tested at multiple instances and is decided as fair and prudent. This is not an article supporting revisionism, this is an article that shows what the future can look like for ordinary Americans one week from now. It is free to anyone to speculate about what will be illegal to criticize after the election. . . . Hamas? Weathermen Underground? Ayres? The Government? In a free society, the society punishes moronic statements, not the Governmetn or The UN. This is a warning about what can happen when Jurists and the Government gets to decide what we can say, this is what will happen when Judge Kennedy and King Hussein decides what is moral and correct. Not that there is no secret police or death squads in this analysis just a simple cash penalty on personal opinion. . . . Free $peech i$ not free. . . Sources are included for anyone who cares about freedom.

The central character in the case is a man named Robert Faurisson, who is a well known revisionist.

The case deals with Faurissons complaint against the French government pertaining to its legal system, mainly the legality of the Gaysott Act.

The Gaysott Act was taken into practice 13 July 1990, and seeks to minimize violence or other harmful acts against people based on “ethnic group, nationality, race or religion”.# The applicable part of the Gaysott act for this case is the prohibition of “publication of ideas contesting the existence of the crimes against humanity committed by Nazi Germany during World War II defined in the appendix to the London Agreement of 8 August 1945.”#

The case takes its start in an article in the magazine Choc du Mois which was published in September 1990. In the magazine, Faurisson displays his believes regarding the holocaust.
"... No one will have me admit that two plus two make five, that the earth is flat, or that the Nuremberg Tribunal was infallible. I have excellent reasons not to believe in this policy of extermination of Jews or in the magic gas chamber ..."
"I would wish to see that 100 per cent of all French citizens realize that the myth of the gas chambers is a dishonest fabrication ('est une gredinerie'), endorsed by the victorious powers of Nuremberg in 1945-46 and officialized on 14 July 1990 by the current French Government, with the approval of the 'court historians'".#

These quotes caused much anger among the readers and a number of survivors of World War 2 pressed charges against Faurisson and the author of the article.

The French Tribunal de Grande Instance of Cusse decided that Faurison and the author where guilty of "contestation de crimes contre l'humanité“according to the Gaysott Act. The two defendants were sentenced to pay a fine of 326 832 Franc.#

The two defendants later appealed the sentence to appellate court in Paris which resulted in an increased fine. The court held that the sentence is applicable to present European Union (EU) law, namely articles 6 and 10 of the European Convention of Human Rights and Fundamental Freedoms (ECHRFF).# One should point out that EU law is supranational, as decided by the van Gend & Loos v Netherlands Inland Revenue Administration case.# This fact should be contrasted with the fact that decisions in the United Nations Human Rights Committee (UNHRC) are not binding.#

The case was brought to the UNHRC in which Faurisson refused to appear for hearings because of financial difficulties. Faurisson has, however, made the claim that his right to freedom of speech has been violated by the Gaysott Act.#

Faurissons claim regarding his right to freedom of speech is backed by numerous international documents and conventions, also a number of moral-philosophical claims can be made in support of Faurissons argument.

Article 18 and 19 in the Universal Declaration of Human Rights (UDHR) guarantees an individuals´ right to freedom of thought, conscience opinion and expression.# Furthermore, the International Covenant on Civil and Political Rights (ICCPR) makes references to the same rights in articles 18 and 19.#
One can clearly see that there is a strong defense for freedom of speech in international law, and that this right shows a clear sign of universalisation as argued by Eide.# When studying the core documents regarding human rights, one can easily see that freedom of speech is a part of most of these documents. One can draw the conclusion that framers of international law has believed that freedom of speech is an essential human right.

Further readings show that freedom of speech has always been seen as one of the core rights in a liberal democratic society.# Proponents of liberal rights such as John Stuart Mill argue that freedom of speech is important not only for individual freedom, but also for societal and intellectual development.# Furthermore, experts of human rights argue that limits to freedom of speech and freedom of the press is a common political tool used by dictators and tyrants.# One can therefore see that there are strong risks associated with limitations on freedom of speech, and that freedom of speech fills many important functions in a society.

Mills argues that the only limitation on freedom of speech should be made when a speech causes direct harm to an individual or group of individuals.# One can clearly see that Faurisson does not propose any physical attacks on people in his statements. The statements are therefore not strong enough to be rendered illegal; the Gaysott Act is in this case inconsistent with a Millsean analysis of free speech.

Finally, it is commonly understood that it is the responsibility of the national government to uphold human rights.# One may make the argument that France´s limitations on freedom of speech might be unlawful and that they might fail to follow their obligations to uphold human rights.

However a close examination of the case supporting the Gaysott Act has to be made to make a sound judgment on the fairness of the Gaysott Act.

Limitations on freedom of speech are often frowned upon by the international community, but there are several instances in which certain restrictions can be applied on a individuals´ freedom of speech. One can actually see that there are more clauses limiting freedom of speech than there are clauses supporting it.

France argues that article 5(1), of the ICCPR gives them the right to suspend some of Faurissons rights for the purpose of protection of the rights of others.# France further argues that article 17 of the ECHRFF gives them similar rights as set out in the ICCPR.#

Further references are made to “article 26 and in particular article 20, paragraph 2, of the Covenant, and International Convention on the Elimination of All Forms of Racial Discrimination; under article 4 of this Convention.” #One could make the claim, in this case, that the ICERD includes articles which supports free speech, most notably article 5.# It would however feel counterproductive considering that the main point of the convention is to avoid racist sentiments.#
Paragraph 2 of article 29 of the UDHR states that one’s freedoms can only be limited by national law and “due recognition and respect for the rights and freedoms of others”.# One can thereof see that the early framers of humanitarian law laid out the framework for limitations of free speech and expression when it threatened public order or impeded on peoples freedoms. The relatively lose wording of these articles gives states plenty of leeway when it comes to implement restrictions of freedom of speech.#

Another key document for the analysis of freedom of speech and its relationship with the Gayssot Act is the ICCPR. The ICCPR, in article 19(3) (b), points out that freedom of speech can be infringed upon if it threatens “public order (ordre public), or of public health or morals”.# Here, one can yet again see the reference to morals in a legal argument. A natural way to analyze references to immeasurable objects such as morals would be to consult philosophy.

The moral argument shows an extension from what was earlier argued by Mill and his harm principle. While the harm principle only limits speech that cause direct harm to individuals, legal scholars’ such as Joel Finberg argue this is not enough. Feinberg argues that an offence principle needs to be applied in some cases of public speech or expression. The judgment in this case should “have a basis in the supposed offensiveness of the behavior rather than the harm that is caused”.# Feinberg points out that intent and avoidability becomes key issues when following the offence principle. A statement should be criminalized if it is made simply to provoke the people hearing it, but Freedom of expression cannot be infringed upon if the message can easily be avoided.

The central argument regarding the Gaysott Act is in this case if the message was offensive because Holocaust denial is no doubt harmful. One can also make the argument that the strong words of Faurisson were made with the intent of provoking some readers.

If one follows the thinking of Feinberg, and judge upon intent, a whole new path of legal arguments follows. Many articles of the core conventions allow for a liberal usage of the clauses limiting freedom of speech. Starting with the ICCPR and article 17(1) which states that “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, or correspondence, nor to unlawful attacks on his honor and reputation“. One can clearly see that Faurissons comments can be seen as an intended attack on the honor and reputation of many holocaust survivors. Paragraph 2 of the above article states that “Everyone has the right to the protection of the law against such interference or attacks. “ One can now see that the Gaysott article is applicable with lawful interferences on freedom of speech if one applies the offence principle.

A serious warning against moral judgments should however be made. A problem with judgment based upon intent or morals is that a message will only be judged by a person who is offended by it. It is very hard judge intent or morals on an objective basis.#

One might, therefore, end up in a situation where all sorts of questioning of norms become a legal labyrinth in which someone is always offended. Jack Donelly supports this argument and further points out that freedom of speech includes no moral duties not to spread lies or deceit.# This is according to Donelly prohibited by other laws that are there to protect individuals from the consequences of free speech.# Donelly argues a strong point for modest limitation on freedom of speech since much of the byproducts of freedom of speech such as violence and in this case genocide is already outlawed.#

It is, although, safe to point out that a defense of moral judgments of human rights is easy to find. Well known scholars such as Jurgen Habermas describes human rights as “Janus faced” and points out that human rights have both a moral and a legal aspect. This shows that one has to leave room for some moral arguments.# This argument furthers the states right to make judgments based on morality.

Another interesting note regarding moral judgments is that Freeman points out that the UN strived to avoid philosophical arguments in humanitarian law in all cases but the cases referring to the atrocities committed by the Nazis.#

Another plausible argument for the correctness of the Gaysott Act is that it is compatible with the goal of the UDHR, which was to prevent a repetition of the atrocities committed by the Nazis during the World War 2. A literal interpretation of this statement shows that the Gaysott Act and the UDHR have the same goal, which ads credibility to the Gaysot Act.#

There are many arguments supporting the limitations of freedom of speech, as argued in the Gayssott Act, which are further supported by the decision of the UNHRC. Also, Eide points out that all forms of hate speech must be limited by the national government.#

The committee made clear that “Any restriction on the right to freedom of expression must cumulatively meet the following conditions: it must be provided by law, it must address one of the aims set out in paragraph 3 (a) and (b) of article 19, and must be necessary to achieve a legitimate purpose.”# The committee found that the action taken by France fulfilled the above demands and was both lawful and necessary. It should, however, be mentioned that several judges contested the decision and pointed out that the Gaysott Act was not clear enough and could be too “loosely interpreted”. #

The final decision by the committee is a seemingly ideal introduction to the concluding arguments regarding the Gaysott Act and its infringement on freedom of speech. There are an overwhelming number of documents regarding the legal and moral importance of freedom of speech. Many of the core-conventions regarding human rights include clauses regarding the importance of freedom of speech. Furthermore, many thinkers and founders of liberal theory such as Mill consider freedom of speech a prerequisite for a liberal democracy.

However, a closer look at most international documents concerning freedom of speech shows that states have included examples of rightful discrimination of freedom of speech.# The legal climate in these documents gives states´ adequate rights to impede on freedom of speech to save public order or morals. One can see that it is hard to measure these words in a substantive manner, which gives states even more room to manipulate freedom of speech laws to fit their needs. The Gaysott Act represents such a manipulation. The Gaysott Act has been publicly criticized and the hearings in front of the UNHRC proved a valuable test for this act. Both independent research in this paper and the UNHRC came to the same conclusion that the Gaysott Act is within the framework of freedom of speech.

Donnelly, Jack. Universal Human Rights in Theory and practice (Ithaca:Cornell University Press, 2003).
Eide, Asbjörn (nd) Making Human Rights Universal: Achievements and Prospects.
Freeman, Michael, Human Rights: An Interdisciplinary Approach, (Cambridge: Polity Press, 2002).
Hedlund Thulin, Kristina, Lika i värde och rättigheter: om mänskliga rättigheter (Stockholm: Norstedts juridik 2004).
O'Rourke K. C., John Stuart Mill and Freedom of Expression: The Genesis of a Theory (London: Routledge, 2001).
Thomas, Mark, "When It Comes to Freedom of Speech We Are Prepared to Defend Only Those Threatened Ideas That We Agree With," New Statesman, December 19, 2005. rpoject/humanrightscasesandmaterials/cases/internationalcases/humanrightscommittee/nr/267

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