30 No. 67 JUSTICE Justice of October 20, 2020, that French judges are obliged, when they intend to act on the offense provided for and punished in Article 24(8) of the Law of July 29, 1881 of incitement to discrimination against a person or a group of persons on the basis of their membership in a nation, to give very precise reasons for their judgments in order to justify the interference that the criminal sanction they pronounce constitutes with the freedom of expression guaranteed to the respondent by Article 10 of the Convention. Prosecutors and judges must therefore verify, on the one hand, that the facts characterize a call to hatred or discrimination and not a simple political action, and on the other hand, that the antisemitic nature of the call to boycott is apparent or can be deduced from the words, gestures, and writings of the respondent in each context. The interactions between the French courts and authorities and the European Court of Human Rights finally illustrate the difference in legal understanding of freedom of expression between Paris and Strasbourg.20 Although it serves“a major political function,”21 “freedom of expression is rarely presented as a freedom of the citizen in public life.”22 This is true under French public law, where freedom of expression is studied through the prism of individual freedom or individual freedom exercised collectively.23 This attachment to the lexicon of individual freedoms has led the French administrative judge never to equate freedom of expression with political freedom, even though the latter showed a particularly revealing concern to protect freedom of expression.24 As we have seen, the European Court of Human Rights has been more explicit in clearly recognizing that freedom of expression is a political freedom, insofar as the degree of protection of public expression is more or less conditional on its participation in a debate of general interest. Unlike the French administrative courts, the European Court of Human Rights treats freedom of expression on a substantive level, in terms of the political or public interest purposes it pursues, and not on the formal level attributed to it by the administrative courts, i.e., the existence of expression and a collective character. To build its case law, the European Court dissociates the individual according to whether he is a human or a citizen. It is not so much by means of the message itself, but the debate in which it is part of, that the Court retains a character of general interest. In this context, the circular of October 20, 2020 can be interpreted as a manifestation of the rigorous application of international treaty law by a state that does not, however, renounce its objective of combating provocation to economic discrimination, particularly regarding Israeli products. Thanks to the Baldassi judgment and its reception by the French authorities, the difference in understanding of freedom of expression between Paris and Strasbourg is thus blurred and allows for a consistent and above all efficient synthesis between these two approaches. n Floriane Beauthier de Montalembert is a qualified lawyer at the Paris Bar. She specializes in constitutional law and fundamental freedoms and has been practicing for more than ten years before the French and European supreme courts in a law firmwith the Council of State and the Court of Cassation (Avocats au Conseil d’Etat et à la Cour de cassation). This article was contributed in liaison with the French Committee of the Association Internationale des Avocats et Juristes Juifs (AIJJ) which belongs to the IJL and whose President isMr. Jacques Cohen. 20. I am grateful to Professor David Rivière for this analysis (“Les rapports entre liberté politique et liberté d’expression. Enjeu de l’introduction du principe de proportionnalité dans la mise en œuvre de l’ordre public immatériel,”Droit et société, 2016/3 (no. 94), p. 581-602). 21. Jacques Petit,“Les ordonnances Dieudonné: séparer le bon grain de l’ivraie,” Actualité juridique du Droit administratif (AJDA), 15, 2014, p. 866. In the same way, according to the French constitutionalist Guy Carcassonne,“freedom of expression is all about politics” (in“Les interdits et la liberté d’expression,”Les Nouveaux Cahiers du Conseil constitutionnel, 3, 2012). 22. Michel Verpeaux, “La liberté d'expression dans la jurisprudence constitutionnelle,”Les Nouveaux Cahiers du Conseil constitutionnel (June 2012), available at https:// www.conseil-constitutionnel.fr/nouveaux-cahiers-duconseil-constitutionnel/la-liberte-d-expression-dansles-jurisprudences-constitutionnelles. This dissonance is old, as it already appears in the wording of Article 11 of the Declaration of the Rights of Man and of the Citizen of August 26, 1789: “the free communication of thoughts and opinions is one of the most precious rights of Man” and“every citizen may speak, write or print freely.” 23. Boris Bernabé, “Quelle(s) liberté(s) d'expression avant 1881?” RDP, 3, 2012. This lexical unification around individual liberties was then confirmed by the emergence of this unique sphere of public liberties, which in fact prohibits any conceptual opposition between individual liberties and political liberties. Olivier Beaud thus recalls that, from the point of view of public liberties, freedom of expression“has in principle no relevance in an analysis of citizenship”(“La liberté d'expression, face méconnue de la citoyenneté en démocratie,” in“La démocratie, du crépuscule à l'aube?”symposium, June 2013, Nanterre). 24. See Bernard Stirn,“Le juge administratif et les restrictions à la liberté d’expression,” Revue française de droit administratif (RFDA), 6, 2003.
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