How France's Pursuit of Equality Is Reshaping Free Speech

For many people, France and the French intellectual tradition symbolize freedom and independent thought. The Declaration of the Rights of Man and of the Citizen, adopted on 26 August 1789 during the French Revolution, became one of the foundational texts of modern liberal society.

It guaranteed freedom of speech – not in today's broader sense of freedom of expression, but as the right to communicate ideas and opinions freely. Article 11 declared that every citizen was free to speak, write and publish.

At the end of the 18th century, this was a revolutionary principle. Much of Europe remained under absolutist monarchies, where the press was subject to state or church control. Books and newspapers often required prior approval, while criticism of the monarch, the Church or the established social order could lead not only to prosecution but imprisonment.

The principles of the Declaration were later reflected in France's 1881 Freedom of the Press Act, which begins with a remarkably simple sentence: "Freedom of the press and publishing is guaranteed." Today, that deceptively brief statement captures an extraordinarily broad understanding of public debate.

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Freedom, Equality and the Expanding Role of the State

The legal framework was not the only thing that changed over time. The underlying understanding of free speech evolved as well. In the United States, freedom of expression became one of the central pillars of constitutional democracy, enjoying exceptionally strong protection against government interference.

France took a different path. Equality has long occupied a place alongside liberty as one of the Republic's defining principles. That balance has produced an enduring tension in French debates over freedom of expression.

In a 1993 speech in the Vendée, Alexander Solzhenitsyn argued that freedom and social equality often pull in opposite directions. Freedom naturally produces differences between individuals. Attempts to eliminate those differences, he suggested, inevitably require greater state intervention.

This does not apply to equality before the law, without which no free society can function. The debate begins when governments seek to guarantee not only equal rights, but also equal outcomes, equal status or equal protection from offense.

The evolution of French free speech law illustrates this tension. Over the decades, lawmakers have gradually shifted greater emphasis toward protecting the dignity of particular groups while narrowing the scope of unrestricted public expression. Rather than a single sweeping reform, the shift came through successive amendments and new criminal offenses.

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From Criminal Acts to Crimes of Opinion

Three laws mark the most significant stages of this evolution: the Pleven Act of 1972, the Gayssot Act of 1990 and, decades later, the Avia Act, which attempted to extend similar principles to online platforms.

The Pleven Act represented the first major shift. French law no longer focused solely on direct incitement to violence or specific attacks against individuals. It also criminalized public incitement to discrimination or hatred based on origin, nationality, ethnicity or religion.

At first glance, this appeared to be a reasonable response to racism. At the same time, however, it expanded the scope for judicial interpretation. Hatred is inherently more difficult to define than direct incitement to commit a specific crime. Courts therefore began assessing not only whether someone had encouraged unlawful acts, but also whether their statements fostered hostility toward an entire group.

The Gayssot Act went further. It introduced criminal penalties for denying or grossly trivializing certain crimes against humanity, particularly the Holocaust. In doing so, the state moved beyond protecting individuals from hatred to criminalizing specific forms of historical denial.

Critics argue that this gave rise to what the French call délit d'opinion – a "crime of opinion". Under this interpretation, criminal liability no longer depended solely on inciting violence or discrimination. Public statements about historical events could themselves become criminal offenses.

This raises an obvious question. Does such legislation remain consistent with the original spirit of the Declaration of the Rights of Man and of the Citizen? Article 11 describes the free communication of ideas and opinions as one of humanity's most precious rights, while also acknowledging that abuses of this freedom may be punished under the law.

The French debate is therefore not about whether any limits should exist, but whether governments should criminalize false, offensive or morally repugnant interpretations of history.

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The Internet and the Chilling Effect

The latest stage in this evolution came with the Avia Act in 2020. Its goal was to apply existing rules on hate speech to online platforms. The legislation required companies to review reported content rapidly and remove material deemed clearly illegal.

Critics argued that this shifted decisions about the limits of free speech away from the courts and toward private companies. Faced with potentially severe penalties, platforms would have a strong incentive to remove even lawful but controversial speech.

The French Constitutional Council ultimately struck down the law's central content-removal provisions, concluding that they imposed a disproportionate restriction on freedom of expression. The decision demonstrated how efforts to combat hate speech can collide with broader protections for free debate.

This debate is not merely theoretical. In 2022, French courts recorded 1,249 convictions for racially motivated crimes and offenses. Most involved insults or defamation. Only 24 people were convicted primarily for incitement to discrimination, hatred or violence, while prosecutions for denying crimes against humanity remain relatively rare.

However, the broader issue is not simply how many people are convicted. Criminal investigations themselves can have significant consequences. Defendants may spend months explaining statements, hiring lawyers and waiting to see how prosecutors and judges interpret their words.

Nor is the issue confined to high-profile figures such as Alain Soral or Dieudonné.

Today, a careless remark, recorded on a mobile phone and stripped of its original context on social media, can quickly become the subject of a criminal investigation.

Perhaps that is the price France has chosen to pay for greater equality.

Yet a society in which people begin weighing every word for fear of investigation or prosecution inevitably narrows the space for free debate, even if freedom of speech formally remains protected by law.

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