“The free communication of thoughts and of opinions is one of the most precious rights of man …”Thus begins Article XI of the Declaration of the Rights of Man and of the Citizen. The document signifies a landmark in the history of human rights, no doubt. But it contains an unavoidably moral approach to the legal protection of free speech. Such an approach, based on moral principles, falters most easily before memory laws.
Memory Laws
Memory laws, acts that have passed with increasing frequency in the French National Assembly, cast moral judgments on certain opinions by outlawing their expression. In the shadow of a turbulent history, the French parliament has enacted what is likely the most stringent and complicated set of memory laws in the world. Haunted by the specter of the Second World War, Europe has taken incredible measures to curb hate speech. The European Union has established in 2008 framework law to criminalize hate speech, advising one to three years of incarceration.
But France has gone further than any other nation in its campaign against hate speech—passing memory law has been dubbed France’s national sport. Why France, rather than Germany or Austria? While the Holocaust is fresh in the memory of Europeans, xenophobia is rooted deeply in a bitter part of French history, notably slavery and global colonialism. Furthermore, the rhetoric behind the French Revolution reifies political fears of dangerous speech. Fueled by these fears, the number of memory laws passed in France exploded after the Second World War.
In 1894, the New York Times wrote, “The principle of censorship, inherited from dynastic Governments, was retained in France until it was swept away by the press law of 1881.” Indeed, the French revolutionized their speech protection laws in a way the world could not ignore, but amendments and changing interpretation led the law to follow in line with the very principle of censorship it sought to terminate. Article 24 criminalizes incitement to discrimination or hatred, and further amend- ments have broadly expanded the scope of criminalized speech.
Memory laws in France have consistently been met with outrage, particularly by the academic community, which many laws are specifically tailored to regulate.
“History is not a slave to current events … History is not memory,” reads “Liberté pour l’histoire” (Freedom for History), an appeal by some of France’s most notable historians against restrictive memory laws. The appeal, which continues to assert, “The politics of the Nation State, even motivated by the best intentions, is not the politics of history,” lays out a dogmatic argument for academic freedom, which several French laws trammel.
But what of memories themselves? Are memories slave to current events? Perhaps not individual memories—the memories of those who experienced tragedy— but certainly historical memories—the collective memory of a people, which reads its history as grounds for directed progress. This “progress”—the debate continues as to whether this progress is truly positive—emerges as memory laws, but also as social movements and cultural changes. The memory of persecuted peoples, for example Hebrew servitude in Pharaonic Egypt, serves important political functions that alter the course of history and the future. That is to say, the way we remember incidents that we’ve personally never experienced changes the way the history is viewed and furthermore changes the way the present is understood.
Perhaps the idealism of academia clouds the practical impetus of the memory laws. Is free speech worth tolerating revisionists? That is left for the people of France to debate. However, the conflation of memory with history in the political arena is a phenomenon that cannot be ignored. Whereas memory may compose a portion of history, its usefulness is in the present rather than past. Memory has seeped into politics as rhetoric—a loud political machine that feeds on outrage.
French Legislation
Article 4 of the law of February 23, 2005, demands that school curricula rec- ognize the positive role of the French colonization of Africa. The law explicitly violates educational neutrality, and moreover demonstrates the modus operandi of memories realized as law.
“School curricula shall recognize in particular the positive role played by French citizens living overseas, notably in North Africa, and will accord to the soldiers of the French army who served in these territories the prominent historical role they deserve.”
Educators argued that the state had no place in dictating curricula—especially
by spinning history. In a debate reminiscent of the creationism-evolution debate, one wonders whether the people ever benefit from passing a memory law. In an interview with The Guardian, professor of law Thierry Le Bars explains, “It is by no means self evident that France’s colonialism was positive. Think of the ignoble legal status of the Muslims in Algeria, of the massacre of up to 5,000 Algerians in Setif in 1945, of all the unfortunates who endured the hell of slavery to assure the prosperity of Caribbean islands.” The overwhelming evidence of the negative effects of colonialism seems to fall short for proponents of the memory law, notably the Union for a Popular Movement (UMP) conservative majority. Instead, ideas of what should be or what should have been take precedence. French nationalistic pride imposes a sort of political agenda on history. Thus, the UMP moralizes history in order to change the present, rather like proponents of creationism in schools, who ignore scientific truths and opt for moral truths instead. Moral truth, the unlimited subjective lens through which history may be viewed, alters the way history interacts with the present. It is worth noting that history is by no means objective. Methods of analysis, preconceived notions, positionality, and research funding sources each add a layer of subjectivity to historical research. Despite this, the imperfect practice retains objectivity to a greater degree than do moral judgments.
For example, viewing the slave trade as a crime against humanity immediately moralizes the historical event, casting present-day judgment on a centuries old institution. This particular case may be admirable, especially in light of contemporary slave-trade issues. But who is to say that condemning the slave trade is different from lauding colonial invasion? Either way, history becomes a moral object to use as a political tool.
Perhaps the idealism of academia clouds the practical impetus of the memory laws. Is free speech worth tolerating revisionists? That is left for the people of France to debate. However, the conflation of memory with history in the political arena is a phenomenon that cannot be ignored. Whereas memory may compose a portion of history, its usefulness is in the present rather than past. Memory has seeped into politics as rhetoric—a loud political machine that feeds on outrage.
French Legislation
Article 4 of the law of February 23, 2005, demands that school curricula rec- ognize the positive role of the French colonization of Africa. The law explicitly violates educational neutrality, and moreover demonstrates the modus operandi of memories realized as law.
“School curricula shall recognize in particular the positive role played by French citizens living overseas, notably in North Africa, and will accord to the soldiers of the French army who served in these territories the prominent historical role they deserve.”
Educators argued that the state had no place in dictating curricula—especially
by spinning history. In a debate reminiscent of the creationism-evolution debate, one wonders whether the people ever benefit from passing a memory law. In an interview with The Guardian, professor of law Thierry Le Bars explains, “It is by no means self evident that France’s colonialism was positive. Think of the ignoble legal status of the Muslims in Algeria, of the massacre of up to 5,000 Algerians in Setif in 1945, of all the unfortunates who endured the hell of slavery to assure the prosperity of Caribbean islands.” The overwhelming evidence of the negative effects of colonialism seems to fall short for proponents of the memory law, notably the Union for a Popular Movement (UMP) conservative majority. Instead, ideas of what should be or what should have been take precedence. French nationalistic pride imposes a sort of political agenda on history. Thus, the UMP moralizes history in order to change the present, rather like proponents of creationism in schools, who ignore scientific truths and opt for moral truths instead. Moral truth, the unlimited subjective lens through which history may be viewed, alters the way history interacts with the present. It is worth noting that history is by no means objective. Methods of analysis, preconceived notions, positionality, and research funding sources each add a layer of subjectivity to historical research. Despite this, the imperfect practice retains objectivity to a greater degree than do moral judgments.
For example, viewing the slave trade as a crime against humanity immediately moralizes the historical event, casting present-day judgment on a centuries old institution. This particular case may be admirable, especially in light of contemporary slave-trade issues. But who is to say that condemning the slave trade is different from lauding colonial invasion? Either way, history becomes a moral object to use as a political tool.
The Taubira Law of May 21, 2001, follows exactly as described above. It is the official French recognition of slavery as a crime against humanity. The law was not met with any uproar—people disapprove of slavery across the board. In fact, the Taubira law was questioned only in the wake of the law of February 23, 2005, the colonialism law. Historian Olivier Pétré-Grenouilleau, professor at the Institut d’études politiques de Paris, boldly condemned both laws in an interview with the Journal du dimanche. After Pétré-Grenouilleau’s subsequent infamy and threats of lawsuits, historians officially co-authored “Liberté pour l’histoire,” detailing the limitations of history—that it is neither a judicial object, nor a memory—and appealing for the overturn of the four laws which most clearly restricted the ability of historians to conduct research. Besides the Taubira law and colonialism law, “Liberté pour l’histoire” condemns the law of July 13, 1990, and the law of January 29, 2001, concerning Nazism and the Armenian genocide respectively, as “unworthy of a democratic state.”
But these two laws include a unique complication. While colonialism and slavery are overwhelmingly part of France’s collective memories, these two laws are also ingrained within individual memories. These memories are recent to a point that they are political to this day, without the need to moralize history. Unlike colonialism and slavery, the issues of the law of July 13, 1990, and the law of January 29, 2001, are not relics of a past time. Instead, they are modern: Europe still experienc- es their bitter aftertaste.
Too Soon?
But how soon is too soon? When exactly is a law a memory law, and when is
it a law responding to contemporary issues? For the historian, it does not matter. Any law with a moral tinge is a chisel to the foundations of the amoral study. But then again, no historian denies the Holocaust or the Armenian genocide. These relatively recent events fail to spark the outrage of historians because, by and large, the French are all on the same page. The Holocaust occurred. The Armenians faced genocide. It seems cut and dry, amoral. But, if there is a consensus about the veracity of these events, why put the laws in place then?
The Holocaust marks more than systematic genocide. To many, it marks the failure of the world to act quickly enough on human rights violations. Europe is haunted, including France, which passed the law of July 13, 1990, to combat these certain concerns by criminalizing Holocaust denial. Even if the law serves only to deter a few from denying the Holocaust, it marks a commitment to the moral grounds of the Allied Powers. This moral justification of the law is compelling, even to proponents of free speech.
The same argument follows for the law of January 29, 2001, which recognizes the Armenian genocide as a crime against humanity. But why would France pass a law that moralizes the history of foreign nations? France was at least involved in the Second World War—Ottoman suppression of the Armenian people seems less relevant. Speculation suggests that the law appeased the Armenian population in France, a major voting block, because the president rushed the law through parliament in a voting year. Perhaps the domestic law was intended to have geopolitical repercussions; further legislation criminalized Armenian genocide denial, but was repealed a month after Turkey withdrew its ambassador and cut economic ties with France. Regardless, the moralization of the Armenian genocide is politically puissant.
To Compare America
“There is no Richter scale of suffering,” declared Olivier Pétré-Grenouilleau in his infamous interview that sparked national outrage. Keeping Pétré-Grenouilleau in mind, it is not fair to caricaturize the United States as a nation with a short history devoid of emotional toil. Slavery and racial discrimination have scarring effects still visible in American politics. To compare death tolls and the severity of injustice proves nothing, for metrics fail to capture these atrocities. To say France has suffered a more terrible history is not a justification of its memory laws that restrict speech. America has suffered too, but the Supreme Court has consistently expanded the scope of speech protection in the wake of the Civil War.
Too Soon?
But how soon is too soon? When exactly is a law a memory law, and when is
it a law responding to contemporary issues? For the historian, it does not matter. Any law with a moral tinge is a chisel to the foundations of the amoral study. But then again, no historian denies the Holocaust or the Armenian genocide. These relatively recent events fail to spark the outrage of historians because, by and large, the French are all on the same page. The Holocaust occurred. The Armenians faced genocide. It seems cut and dry, amoral. But, if there is a consensus about the veracity of these events, why put the laws in place then?
The Holocaust marks more than systematic genocide. To many, it marks the failure of the world to act quickly enough on human rights violations. Europe is haunted, including France, which passed the law of July 13, 1990, to combat these certain concerns by criminalizing Holocaust denial. Even if the law serves only to deter a few from denying the Holocaust, it marks a commitment to the moral grounds of the Allied Powers. This moral justification of the law is compelling, even to proponents of free speech.
The same argument follows for the law of January 29, 2001, which recognizes the Armenian genocide as a crime against humanity. But why would France pass a law that moralizes the history of foreign nations? France was at least involved in the Second World War—Ottoman suppression of the Armenian people seems less relevant. Speculation suggests that the law appeased the Armenian population in France, a major voting block, because the president rushed the law through parliament in a voting year. Perhaps the domestic law was intended to have geopolitical repercussions; further legislation criminalized Armenian genocide denial, but was repealed a month after Turkey withdrew its ambassador and cut economic ties with France. Regardless, the moralization of the Armenian genocide is politically puissant.
To Compare America
“There is no Richter scale of suffering,” declared Olivier Pétré-Grenouilleau in his infamous interview that sparked national outrage. Keeping Pétré-Grenouilleau in mind, it is not fair to caricaturize the United States as a nation with a short history devoid of emotional toil. Slavery and racial discrimination have scarring effects still visible in American politics. To compare death tolls and the severity of injustice proves nothing, for metrics fail to capture these atrocities. To say France has suffered a more terrible history is not a justification of its memory laws that restrict speech. America has suffered too, but the Supreme Court has consistently expanded the scope of speech protection in the wake of the Civil War.
Given such similar pressures, why does America not have speech-restrictive memory laws? Are American legislators more resistant to memory law, less susceptible to moral rhetoric? Probably not. The Patriot Act, the Defense of Marriage Act, the Civil Rights Act of 1964, and many other pieces of American legislation were argued on moral grounds. An interesting difference between free speech law in France and the United States lies in the clauses that establish their respective rights to free speech. The quote from Article XI of the Declaration of the Rights of Man and of the Citizen continues as, “Every citizen may therefore speak, write, and print freely, if he accepts his own responsibility for any abuse of this liberty in the cases set by the law.” The First Amendment, on the other hand, reads, ”Congress shall make no law … abridging the freedom of speech.” Perhaps the First Amendment’s basic structure, unfettered by a moral justification—rather than Article XI’s appeal to “the most precious rights”—and lack of an escape clause—rather than Article XI’s concession that the law may punish certain speech—establish a right that is simply more difficult for memory law to cripple. Perhaps the very fact that Article XI is the eleventh article reflects a lesser commitment to speech freedoms than a nation that established the right to free speech in their first amendment.
Regardless, it would be a mistake to argue that any nation is free of memory law, that memory—an incredibly effective political tool—is somehow forgotten in the political landscape of newer countries, more progressive countries, or fallen civilizations. Memories inform our understanding of the present as much as the past. They are memorialized as holidays, history, and legislation, in the form of memory laws. Memories function as windows into our collectively remembered past, with a moralizing tint.
Image Credit: The Telegraph
Regardless, it would be a mistake to argue that any nation is free of memory law, that memory—an incredibly effective political tool—is somehow forgotten in the political landscape of newer countries, more progressive countries, or fallen civilizations. Memories inform our understanding of the present as much as the past. They are memorialized as holidays, history, and legislation, in the form of memory laws. Memories function as windows into our collectively remembered past, with a moralizing tint.
Image Credit: The Telegraph
