Council of State Upholds Ban on Conference Threatening Human Dignity: Freedom of Expression vs. Public Order.
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Freedom of expression, freedom of assembly, human dignity, public order, municipal police power, mayor's authority, administrative jurisdiction, Council of State, Article L 2212-2 CGCT, Article L 521-2 CJA, Salafist preachers, proportionality, necessity, adapted infringement, fundamental freedoms, local public order, public health, safety, security, jurisprudence, municipal decree, administrative judge, legal criterion, foreseeability, restriction of freedoms, territorial collectivities, General Code of Territorial Collectivities, Code of Administrative Justice, CJA, CGCT, municipal police, human rights, legal framework, jurisprudence Morsang-sur-Orge 1995, France law, administrative law, freedom of speech, assembly restrictions
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Unlock the nuances of municipal police power and freedom of expression with our comprehensive document. Discover how the Council of State's decision on March 4, 2023, sets a precedent in balancing public order and individual rights. Learn about the critical role of respecting human dignity in the context of Article L. 2212-2 of the General Code of Territorial Collectivities and its implications on the freedoms of expression and assembly. Dive into the legal intricacies and expert analysis on the subject, providing valuable insights for legal professionals, researchers, and those interested in administrative law. Explore the full document to gain a deeper understanding of the judicial consequences and the importance of proportionality in restricting fundamental freedoms.
Extract
[...] Thus, we would have answered the question of recidivism. A proposal that makes sense in that the High Jurisdiction had already accepted the commitment not to take up again songs with antisemitic lyrics that would suffice9. In this case, the jurisdiction could rely on previous concerts that demonstrated the absence of these contentious songs. The problem is that in this case, the jurisdiction did not give the individual concerned the opportunity to prove the value of his commitment. However, here the individual has been the subject of several criminal convictions and these partly justify the precautions taken. [...]
[...] A control solely focused on the personality of individuals revealing the lack of proportionality and mutability When implementing the preliminary ruling on freedom, the administrative judge must ensure that 'the infringements, for public order requirements, on the exercise of these fundamental freedoms must be necessary, adapted and proportionate'. The Council of State had the opportunity in 2011 to mention them as the elements implementing a 'triple proportionality test' on police measures6. In this case, the Council of State extensively verified the necessity of the measure banning the conference since it justifies it with regard to the risk of undermining respect for human dignity. However, we may wonder about the control exercised by the judges on the other two points. [...]
[...] Thus, the individual concerned could be prohibited from any public intervention in conferences and meetings at the risk of these being simply banned. The infringement on his freedom of expression, which is nevertheless constitutionally protected, is then shown to be disproportionate. This is also what happened to the show tour of the humorist Dieudonné in 2014. On this occasion, Évelyne Sire-Marin (Vice-President of the TGI of Paris) condemned a "contempt for the fundamental principle of the separation of powers" and denounced terribly mechanical conception of recidivism" which gives a glimpse of an arbitrary world in the Minority Report where judges 'scan the brains of pre-criminals before imprisoning them'8 However, in this perspective, adaptability also seems to be lacking. [...]
[...] This is an objective of constitutional value, as the Constitutional Council stated in its decision of 27 July 1982 that "it is for the legislature to reconcile [ . ] the exercise of the freedom of communication as it results from Article 11 of the Declaration of the Rights of Man, with [ . ] the objectives of constitutional value that are the safeguarding of public order, respect for the freedom of others and the preservation of the pluralistic character of socio-cultural currents of expression"2 A first difficulty then appears since the law does not properly define public order. It certainly has components at Article L. [...]
[...] Finally, he highlights the support given by an associative publishing house dissolved administratively due to its actions to provoke terrorist acts on the territory or the discourse of its leaders inclined to provoke hatred and violence against people. In this context of urgency, the Council of State had to question the content and scope of the ban on the conference in respect of human dignity, and whether, in this regard, the manifest infringement of the freedom of expression and assembly was justified. [...]
