Marine Le Pen, the leader of the Front National (FN; National Front) party in France, a member of the European Parliament and one of the leading candidates for President of France in the upcoming French presidential elections is in the news for losing her immunity for the alleged criminal offence of tweeting pictures of Islamic State violence (Reuters: 'Marine Le Pen loses EU parliament immunity over tweets'). This leaves her open to prosecution with a potential jail sentence, a rather unusual circumstance for the potential leader of a major western democracy.
I don't want to spend much time talking about Le Pen, or the FN and its policies (most of which I personally oppose), but I do want to talk about the more fundamental questions this prosecution raises about freedom of speech and whether the west has its priorities right considering the threat from terrorism.
In order to do that I'll describe what Le Pen actually did, whether she broke the law, and the reaction.
The Tweets: What actually happened?
- On 16 Dec 2015, French TV/radio BFM/RMC host Jean-Jacques Bourdin had a discussion (audio; French) on his 'Bourdin Direct' program with Gilles Kepel, a French political scientist and specialist in Islam
- Bourdin Direct is a prominent show in France and has 400K+ followers on Twitter. Marine Le Pen has also been interviewed on this show whilst running for President (video; French)
- During their discussion, Kepel and Bourdin talked about the increasing popularity of Le Pen's FN party in France as well as rise of Islamic State (IS; or 'Daesh') in the Middle East
- The FN is a legal political party supported by more than a quarter of the French population. IS is the worst theocratic terrorist group of murderers on Earth and outlawed by the United Nations, the USA, the UK, the European Union and many others
- Despite this, Kepel compared the FN to Islamic State . Specifically, Kepel said that "Ce sont deux phénomènes congruents, qui se ressemblent" (roughly translated: FN and IS are "congruent phenomena" that "resemble" each other)
- The host Bourdin also later said that while there are not "direct links" between FN and IS, they had a "communauté d'esprit" ('community spirit' or similar mindset)
- Clearly outraged at this comparison on a major French broadcaster, Marine Le Pen responded on Twitter, tweeting @ Bourdin, saying that the comparison "between FN and IS" was "unacceptable" and he should withdraw his remarks
- The FN also responded on Twitter, inviting their supporters to call into the show:
- 5 minutes later, Le Pen then sent a further 3 tweets to Bourdin, showing Islamic State atrocities. The tweets contained the following images:
- The body of IS hostage and US Journalist James Foley after he was beheaded by IS
- An IS hostage locked in a cage being burned alive
- An IS hostage being murdered by being crushed by a tank
- All were captioned "Daesh c'est ÇA!" ('This is Daesh!') - in other words, these are the actions that IS/Daesh carry out. The images were obviously graphic, and not blurred or censored
- All 3 images were easily available via a Google search prior to Le Pen's usage and the actions depicted in them had also been reported in major newspapers across the world
- A political ally of Le Pen's - French MP Gilbert Collard - also tweeted similar images as Le Pen to Bourdin on the same day
- At the time of the Tweets, Le Pen's FN had just posted one of its best ever results in French regional elections held in early Dec 2015, receiving 27% or 6 million votes, and marginly winning the first round of voting
- This discussion about FN and IS took place only 1 month after the Paris terror attacks, where Islamic State terrorists killed 130 civilians in a series of coordinated bombings and shootings. In the previous 12 months, Islamic State terrorists in France alone had carried out 4 other attacks, on a train, at a factory, a Jewish supermarket, and at Charlie Hebdo where they gunned down journalists for the crime of publishing cartoons unfavourably depicting a religious figure in Islam
What does the Law say?
I'm no expert on French criminal law but these are the facts as best I can discover:
- The French Criminal Code (Article 222-33-3; passed March 2007, updated in 2014) makes it an offence to "broadcast" through "any medium", depictions of "acts of murder or torture", along with other "violent images"
- The punishment is up to 5 years in prison, and/or a fine of 75,000 Euro. As such, the law is clearly targeted towards those who would glorify or encourage such acts - I.e. IS or their supporters
- Crucially, the law "does not apply where the recording or broadcasting is the result of the normal exercise of a profession for the purpose of informing the public or is carried out in order to serve as legal evidence". Outside of French media, this clause is rarely mentioned in media reports about the case.
- Le Pen as Leader of the FN (one of the largest political parties in France) can clearly claim that her "profession" involves "informing the public" (how could it not?) and that her intention was to refute the comparison between IS and the FN, made to potentially millions of French citizens on a major TV/Radio show
- In addition to being Leader of the FN, Le Pen's membership of the European Parliament as an MEP gives her immunity from prosecution. All MEP's have immunity in order to ensure their debates are not unduly restricted, this is a common feature of national legislatures - for example the UK Parliament has similar immunity, as does the French National Assembly
- The European Parliament can remove immunity by a majority vote if requested to do so by a national police force or judiciary. The French Assembly can also lift immunity in a similar way
Reaction to the Tweets
- Back in the studio, Bourdin was told about Le Pen's response. Bourdin described this as "hysterical", saying that "I will not withdraw my remarks because we did not draw a parallel between Daesh and the FN". Bourdin also said he had "too much respect" for FN voters to do so. Remember that on Bourdin's show it was said that FN and IS were "congruent phenomena", that "resemble" each other, and had a similar "community spirit", and some "links"
- Bernard Cazeneuve, the French Interior Minister at the time immediately responded by saying that Le Pen's tweets were an "abomination". The French Prime Minister Manuel Valls also called Le Pen’s tweets ’monstrous’. (Telegraph: Marine Le Pen under investigation for tweeting graphic Isil images). Cazeneuve also apparently alerted law enforcement himself. The Interior Department is responsible for French law enforcement (note that Cazeneuve also replaced Valls as French Prime Minister on 6 Dec 2016)
- An initial investigation was opened by Cazeneuve himself (according to La Figaro; French) referring the case to PHAROS (also part of Cazenueve's Interior Ministry), a portal for "reporting offensive material online". Both Le Pen and Gilbert Collard's tweets were reported to Pharos
- James Foley’s parents complained about the use of his image by Le Pen. Le Pen subsequently deleted this tweet (not the others), saying “I did not know it was a photograph of James Foley. It can be accessed by anyone on Google. I learned this morning that his family has asked for it to be removed and of course I took it down immediately,"
- A criminal investigation was started by the Paris (Nanterre) Prosecutors office. In April 2016, Le Pen refused to cooperate, citing her immunity as an MEP, Collard did the same, citing his immunity as a member of the French National Assembly
- The Paris Prosecutor then sought to have Le Pens immunity lifted by the EU Parliament almost 10 months later, in Feb 2017, in the middle of the French Presidential election campaign
- The Prosecutor also sought to lift Gilbert Collard's immunity as a French MP. The National Assembly rejected this in Feb 2017, claiming it didn't have sufficient justification
- Unlike the French National Assembly, the EU Parliament voted to remove Le Pen's immunity relating to the Tweets on 2nd March 2017
- On an unrelated matter, on Dec 15 2016, the EU Parliament also opened an investigation into Le Pen about payments made to two aides in her office (Guardian: EU watchdog asks Marine Le Pen to repay €339,000 in staff salaries)
- French Police subsequently raided the offices of the FN on Feb 20 2017, the very same day that Le Pen undertook a presidential campaign visit to Lebanon: "presidential candidate Marine Le Pen on Monday met a foreign head of state for the first time, holding talks in Beirut with Lebanon's president, Michel Aoun" (Middle East Eye: Le Pen meets Lebanese leader in bid for international credibility)
- The EU Parliament did not vote to remove Le Pen's immunity in the unrelated case of payments to her two aides, even though this investigation was launched by the EU itself
- A major TV/radio host and his guest claimed that the FN could be compared to IS, at least partly. The host later denied any such comparison, saying the FN's reaction was 'hysterical'
- This comparison was made after the FN had performed particularly well in the Dec 2015 French regional elections
- Le Pens intention by twitting images of IS atrocities was to refute a comparison between her FN political party and the theocratic terrorists of IS
- Any comparison between the FN and IS is obviously wrong and offensive. It could be reasonably argued that anyone making such a comparison perhaps needs to be reminded of the enormous difference between a legal political party and the worst theocratic terrorist barbarians on Earth
- It is understandable that the victims of IS atrocities shown in the images tweeted would potentially be unhappy or offended at their use for political purposes. But this is different from it being criminal to use these images to defend yourself from a comparison to the Islamic State perpetrators of these atrocities. In addition, the families weren't offended by the comparison of FN to IS, which is also political, and minimises the barbarity their loved ones suffered at the hands of IS by comparing their tormentors to a French political party
- Le Pen was "informing the public" (protected by the law) that a comparison between FN and IS was false. It clearly is false, since the FN has not (as far as I'm aware) carried out 1,300+ terrorist attacks, taken over parts of two countries, murdered thousands, oppressed and raped scores of women, nor ran anyone over with a tank. Even if you think the FN is "far right" and *might* become as bad as IS, or that the FN is "fascist" or "Nazi" (example of this genre here - Why we should be scared of Marine Le Pen's Front National - ominously mentioning Nazism and calling FN 'authentically fascist'), it certainly isn't today, is it?
- The law was almost certainly not intended to be used to prosecute anyone distributing images in order to condemn them. Or if it was, it's a very bad law that should be repealed
- French Interior minister Bernard Cazeneuve called Le Pen's tweets an "abomination" before even a preliminary investigation had been carried out or legal determination had been made. His department is responsible for the investigation. This clearly prejudices the legal proceedings, especially as Cazeneuve is a political rival of Le Pen. If the case was strictly one of enforcing the law, the authorities should not comment about ongoing legal proceedings
- The EU or French National Assembly were not asked to lift immunity until Feb 2017, over a year after the alleged "crime" of tweeting images had been carried out. In the meantime, Le Pen had announced her candidacy for the French Presidential elections. Given the raid on FN's HQ in the unrelated matter of payments to two aides also taking place on a day blatantly designed to embarrass Le Pen politically, It is hard to avoid the conclusion that the intention of the investigation is to have headlines stating that Le Len is "under criminal investigation" whilst running for President
- Whilst the EU Parliament voted to lift Le Pens immunity, the French National Assembly did not in the case of Collard, even though the two cases are virtually identical. The EU Parliament also selectively lifted Le Pens immunity, leaving it in place for an unrelated case regarding use of EU funds in Le Pens office. In other words, only Le Pen (running for President of France) had her immunity lifted, for the alleged crime of speech, but not other alleged crimes
Whatever you think about Le Pen herself or the policies of the FN, to me it is clear the case against her for tweeting images of Islamic State violence is politically motivated and amounts to interference in a democratic presidential election. Whether she becomes President of France or not, after the elections I predict that the case against her will almost certainly be dropped.
It is disappointing that many liberals, who decried what they called FBI interference in the US Presidential election are so ready to defend, forgive the pun, trumped up charges against Le Pen. If law enforcement interference close to an election is wrong when the target is Hilary Clinton, it should also be obvious it is wrong when the target is Marine Le Pen.
It boils down to this: even under a quite restrictive French law, does Marine Le Pen have the right of freedom of expression to "inform the public" that the FN is not comparable to Islamic State? Or inform the French public why such a comparison is inaccurate by showing the reality of Islamic State crimes? Yes, she does.
Should the French judiciary, police and interior ministry be using its limited resources to find actual Islamic State terrorists planning real attacks rather than prosecuting politicians who condemn the terrorists crimes with virtual tweets? Yes, they should.
Even if you are a liberal and opposed to FN policies, will such an obviously politically motivated attempt to damage Le Pen backfire anyway, increasing her support? Yes, it will.
Don't try and ban or criminalise speech, even if it is speech by people you dislike.