In France, freedom of expression is enshrined in the Declaration of the Rights of Man and of the Citizen, a document drafted and adopted in 1789 by the country's National Constituent Assembly that laid out a new vision of government during the French Revolution.
Freedom of expression is today recognized as an essential precept of modern democracy. The right of French citizens to communicate freely is protected by several pieces of legislation, including the Universal Declaration of Human Rights that was adopted by the United Nations General Assembly in 1948, and the 1953 European Convention on Human Rights. This liberty applies to publications in any format, and includes the freedom of the press, whose provisions and responsibilities are defined in France's Press Law of 1881.
The legal framework regulating French freedom of expression is defined by several amendments, and while it remains an almost unfettered right, there are laws in place to determine and prevent abuses. Defamation, insult, incitement to hatred and discrimination, and invasions of privacy are all regarded as abuses of the right to freedom of expression and violations of the law.
French lawmakers passed a controversial new anti-terror law last November that prescribed punishment for individuals on the basis of assumed terrorism. The law also made the "glorification of terrorism" an offense under the country's penal code. Critics denounced it as undemocratic, fearing it would compromise civil liberties.
"It is a multi-layered legislation, made up of several laws that contradict the founding principle — which we have now lost sight of, to some extent," Emmanuel Pierrat, a French attorney who specializes in matters of free speech, told VICE News. He believes that successive amendments to the 1881 law have made it complex and opaque.
The right to blasphemy
According to Pierrat, constant redefinitions of the law are partly to blame for the fact that, as he put it, "some people don't understand why you are allowed to draw cartoons of Muhammad."
"Blasphemy stopped being an offense in 1789," he explained. "In France, you are allowed to criticize through drawings, including cartoons. It is an integral part of freedom of expression. It is only punishable when you cease to attack God, and start attacking those who believe in God."
In short, French law condemns attacks against individuals, not beliefs. It protects religious individuals, not religions. In Pierrat's view, Charlie Hebdo was "attacking an ideology" by publishing cartoons of the prophet.
In 2007, Charlie Hebdo landed in court after angering several Muslim groups for reprinting cartoons of the Prophet Muhammad that had originally appeared in Danish daily Jyllands-Posten. The case against the weekly was soon dismissed, with judges ruling that, "In a secular and pluralistic society, the respect of all faiths goes hand in hand with the freedom to criticize all religions."
Speaking after the unity march that mobilized four million people across France on Sunday, Reporters Without Borders Director-General Christophe Deloire called for religious leaders to sign a "blasphemy charter," solemnly asserting that blasphemy is a right of French citizens. He later told VICE News that he wanted religious leaders to recognize that freedom of expression does not adhere to any religion.
"They can have their sacredness, but they cannot impose it on anyone else," he said, adding that no one "is under any obligation to respect this sacredness."
The right to satire
French daily Le Monde has reported 48 lawsuits against Charlie Hebdo since 1992. Out of these 48 lawsuits, the magazine was found guilty of insult nine times. It was convicted for insulting far-right National Front candidate Marine Le Pen in 1995 after calling her "the Bitch of Buchenwald," in reference to the wife of a Nazi concentration camp commander.
The satirical weekly was also handed a guilty verdict when French singer-songwriter Renaud —an early contributor to the magazine — called a journalist from Le Monde "a pointless idiotic cretin."
"There is, in a way, a right to humor that is not enshrined within the law," Pierrat noted. "It implies that, as a humorist, you can get away with saying things that are pretty scandalous." But he conceded that the legal implications of this perspective "are a bit problematic."
The recent arrest of French comedian Dieudonne M'bala M'bala is a good illustration of the subtleties governing the fractious relationship between the law, freedom of expression, and humor. Dieudonné, whose show was banned in France earlier this year over concerns that it involved anti-Semitic hate speech, was arrested on Wednesday for posting a Facebook message ("Je suis Charlie Coulibaly")that was seen as expressing sympathy for Amedy Coulibaly, the gunman who killed four hostages at a kosher market in Paris last Friday.
"Tonight, as far as I'm concerned, I feel like Charlie Coulibaly," he wrote, using a play on words blending the attacker's name with the rallying "Je suis Charlie" slogan.
Dieudonné addressed France's Interior Minister in a subsequent post: "Whenever I speak, you do not try to understand what I'm trying to say, you do not want to listen to me. You are looking for a pretext to forbid me. You consider me like Amedy Coulibaly when I am not any different from Charlie."
The comedian has been convicted several times on anti-Semitism charges, and was already facing up to seven years in prison for "glorifying terrorism" after he compared the murder of American journalist James Foley by Islamist militants to the killings of Muammar Qaddafi in Libya and of Saddam Hussein in Iraq.
On Wednesday, Dieudonné's lawyer David de Stefano accused the French government of hypocrisy.
"We are in the land of freedom of expression?" he asked incredulously, before sarcastically adding, "The government proved that this morning."
On social media, #JeSuisDieudonne surfaced to call out French "double standards."
But for Pierrat, there is no comparison between the comedian and the slain journalists.
"It's almost as though we've forgotten that Dieudonné is not merely a comedian," he said. "He has his own political party,he is running for election. This is not simply a comedian, but someone who is actively involved in a movement against Jews, Americans."
Meanwhile, Charlie Hebdo's latest cover, showing a tearful Prophet Muhammad holding a "Je Suis Charlie" sign under the words "all is forgiven" has already drawn mixed reactions across the globe.
Blasphemous? Maybe. But according to French law, also well within the bounds of freedom of expression.
Follow Mélodie Bouchaud on Twitter: @Meloboucho