Acts of terrorism in France and Austria call for reflection on the political and tactical use of human rights by States as an instrument of anti-terrorist propaganda. Is the exercise of fundamental freedoms put at risk in the name of realpolitik? The analysis of Andrea Monti, adjunct professor of Law and Order and Public Security, University of Chieti-Pescara – Originally published in Italian by Formiche.net

There is no way, at least for now, of knowing whether the murder of the French teacher Samuel Paty, the killing of three people in Nice and the massacre in Vienna are the execution of a global plan, or whether they are individual events, planned and carried out by individuals or criminal cells. We also ignore if the spark that triggered them is – once again – the satire of Charlie Hebdo (a fact certainly connected to the assassination of Samuel Paty, but not to the others).

THE CONSEQUENCES OF THE POLITICAL EXPLOITATION OF FUNDAMENTAL RIGHTS

It is certain, however, that the rhetoric of defence at all costs of freedom of expression that springs in such cases can become dangerous when exploited for political purposes.

The French daily Le Monde published an article by Olivier Mongin and Jean-Louis Schlegel, former editor-in-chief and editor-in-chief respectively of the historic magazine Esprit that fuels this debate.

The two French intellectuals wonder whether the political exploitation of Charlie Hebdo’s comics, projected onto the façades of two hotels in Occitaine or to be shown – so a politician asked – on all the walls of France, is a correct response capable of stopping the wave of violence that is sweeping through Europe.

The crucial subject of the article is the political appropriation of the cartoons, which translates into

a mobilisation  pour impser à la vue de tous (au nom de la “liberté républicaine”) des  caricatures extrêmes de la religion.

It is a shift from the individual freedom of not wanting to see those cartoons, which remain confined to the voluntary author-user relationship, to forcing the community to look at them not by its own choice but by political imposition.

It is a logical assumption, therefore, that we are no longer facing an extreme exercise of the individual’s right to freedom of expression, but a tactical political choice that includes fundamental rights in the arsenal of non-conventional weapons to be used to combat the propaganda of Islamic terrorism. It is not anymore affirming a principle. It is, rather, the institutional acceptance of the limit to the free speech the Charlie Hebdo “way”.

The confusion between the plan of legal rights and political claims is very dangerous.

Clearly, in the legal rights domain, such roots of modern democracies are not even remotely challenged. When it comes to politics, on the other hand, realpolitik follows oblique paths and, by definition, its only limit is the machtpolitik, the might that, individually, a country can either express or apply. Even short-term political choices, therefore, can have lasting adverse effects that are not immediately perceptible.

THE BALANCE BETWEEN INDIVIDUAL RIGHTS, COLLECTIVE NEEDS AND VALUES OF THE LEGAL-POLITICAL SYSTEM

It is a given that a right, also if fundamental, has its limits.

Sometimes, as in the case of the historical campaigns on divorce and abortion and the current campaign on the end of life carried out in Italy by the Radical Party, overcoming limits is a deliberate choice to shake up social customs. Other times abuse is done in the name not of a “fundamental right” but by worshipping an über right, i.e. the claim that one’s individual belief prevails over any other legally estabilished right. Consequently, it is questionable whether the “simple” qualification of a right as “fundamental” implies impunity in exercising it, regardless of the consequences this has on other people and the community-at-large.

In Italy, the clumsy and ineffective exposure notification app “Immuni” fueled a debate on the right to privacy limitations as a quid-pro-quo to track people affected by Covid-19. Such debate was sometimes surreal. However, it advocated a balance between opposing interests: the protection of personal confidentiality, and the right of the community to contain the spread of contagion.

If therefore, a balance of health and confidentiality interests is admissible, it should be as wella when it comes to freedom of expression and personal safety.

IS IT PUNISHABLE WHO ABUSES A FUNDAMENTAL RIGHT?

Here comes the moment of truth.

First of all, one might ask whether restrictions on freedom of expression are justifiable to protect the community. As a corollary, one could also ask whether it is a lawful behaviour that of those who, being able to foresee the consequences of exercising their freedom of expression, hold the risk that others will pay (even with their lives) the price of this “act of freedom”.

It is easy to answer the first question: also the US legal system, which is the flag of freedom of expression, entrusts the courts with this power/duty of control and limitation. Problem solved.

Equally comfortable, but more problematic is, instead, to answer the second question.

That the community as such is a subject that deserves legal protection is beyond question. Just as it is out of the question that there may be actions that are not directed towards one person in particular but cause adverse effects on an entire social group or category of subjects. It is the case of the side effects of drugs (historical, the case of foetal malformations caused by Thalidomide) or pollution (equally fundamental is the case of the pollution of Italian industrial dock Porto Marghera).

If, therefore, the community is the victim of individual actions that damage its health, by analogy it could be concluded that those who damage it through speech, images or other forms of expression should also have legal responsibility.

Italian criminal law already punishes those who spread fake news to commit market abuse or incite hatred and discrimination. The principle of freedom of expression abuse’s punishment, therefore, is already present in the “system”. However, and it is fundamental, the punishment requires a direct link between the action’s outcomes and those who suffer its effects. The Italians legislator held these behaviours so dangerous that they deserve a sanction even before these effects manifest themselves.

Going back to the case of Charlie Hebdo and applying these criteria, there should first of all be evidence that the tragic consequences caused by the publication of the comics strips or their re-proposal were foreseen and accepted by the authors and politicians who, consciously, amplify their diffusion and make them a flag. Secondly, there should be evidence that there is a real and actual link between the diffusion of the cartoons and the attacks. Provided this (impossible) proof is given, then, there would be no insurmountable obstacles to hold the authors of the blasphemous images (and the politicians who support their artistic production) responsible for the consequences of their choices. Such an argument synthesises the different political stands which claimed a direct link between the publication of the blasphemous cartoons and the responsibility for the tragic consequences of this act.

Nevertheless, such a thesis “proves too much” – as one would say in a closing argument – because in a democracy the consequences of even extreme forms of manifestation of thought are a “risk accepted” by the system based on its fundamental values. Consequently, even if a causal link could emerge, it would not be legally correct to establish a responsibility of the French periodical based on the relationship between the publication or use of blasphemous cartoons and the “revenge” consumed by Islamic terrorism.

THE IMPACT ON POLICY MAKING

This analysis, which would appear to be purely legal, has direct consequences on policy making in general and security choices in particular.

Politics and law have long (at least formally) being a house divided. The first, free in determining its goals, achieves what is the result of negotiation between the various constituencies representing society, the second “crystallises” the result of the agreement into “contractual clauses”, with the “fundamental values” representing the bridge between the two camps and that have never challenged for a long time.

It is precisely the “fundamental values”, however, that represent the potential breaking point in the relationship between politics and law. If their content were to be redefined by a tactical political action, the interpretation of the rules would also change accordingly, with effects that go far beyond the “simple” limitation of a fundamental right.

As long as freedom of expression remains exercised in the current terms, it is impossible to resort to classic instruments of social control such as censorship, propaganda and “single thinking”. On the contrary, accepting that freedom of expression may generate indirect responsibility upon the person exercising it, means lowering the risk threshold accepted by the legal system. It means, in other words, to allow the punishment of those who speak freely whenever this causes (undemonstrated) troubles, rather than those who want to eradicate the right to a free thought.

Such a cultural change would not directly affect those, such ideological terrorists, who fight a certain set of principles and tenet, as they do not actually need justifications such as the publication of some unpleasant cartoon to commit atrocities. It rather badly affects the freedom of citizens and the democratic pillars of a State. We would fall back, indeed, to a condition of permanent prevention, that makes acceptable to curtail civil liberties in the name of the stopping of an attack that may never come.

CONCLUSIONS

To argue that there is a legal responsibility for the indirect consequences of the exercise of freedom of expression – or any other fundamental right – is a dangerous argument for the survival of democratic institutions.

Although abstractly possible, especially from a public order perspective, such a choice would require a substantial change in the hierarchy of democratic values and would result in a general and unacceptable restriction of citizens’ freedom.

In dealing with the consequences of the attacks caused by the publication of the blasphemous cartoons, it is necessary to keep the political defence of the fundamental principles of Western democracies separate from the transformation of the specific case into an institutional “flag”.

It is equally important to resist the temptation to weaken the values on which Western democracy rests and to avoid authoritarian slips in the current system of police prevention and security.