Banning Saucepans, an Attack on Freedom of Expression?

Edit of 04/25/2023 at 5:00 p.m.: Following the decision of the Orleans administrative court to suspend the decree, we have added a paragraph explaining the judge’s order.

No pans during Emmanuel Macron’s visit? A decree establishing a protective perimeter with filtering, prohibiting protest rallies and “sound amplifying devices” was published by the prefect of Loir-et-Cher on the evening of April 24. He was suspended by the Orleans administrative court in the afternoon of April 25 (see box).

Traveling to Vendôme this Tuesday, April 25 with the Minister of Health, the President of the Republic must discuss at the beginning of the afternoon with the staff of a nursing home on the issues of access to care. This is a new order based on anti-terrorism laws, after the one published by the Hérault prefecture on April 19, prohibiting “portable sound devices”. The little music of the saucepans definitely does not please the Head of State. In an interview with Le Parisien on April 23, he felt that “people who are there only to cover your voice, even throw things at you, that’s no longer protest, that’s called incivility”.

A measure “which borders on the ridiculous”

Using noisy instruments to protest, “yet that is part of the history of demonstrations, indignant Patrick Baudouin, president of the League for Human Rights (LDH). You can wear a whistle, use a saucepan, it’s still something that does not seem to deserve a prohibition order, “he underlines, considering this measure” absurd “and” bordering on the ridiculous “. He sees in it a desire to repress the right to demonstrate, “which can also have a sound aspect”.

The Hérault decree was taken “opportunely at a time when the protest was taking this direction, the idea of ​​making noise when members of the government and the president passed by, indicates Thibaut Spriet, national secretary of the Syndicat de la judiciary. The idea is to prohibit a mode of expression, which is one,” he underlines. On April 21, the Hérault prefecture denied having wanted to ban saucepans, arguing that it was the police who interpreted it that way…

Anti-terrorism laws used in policing

But in these two decrees, one point is particularly worrying for our interlocutors, the LDH, the Syndicate of the judiciary and the lawyer Eugénie Mérieau: the anti-terrorism laws are used here in the context of maintaining order. The two decrees are based in particular on article L226-1 of the Internal Security Code, a creation of the so-called Silt law, internal security and the fight against terrorism of 2017, which was to be temporary and was made permanent by the law of 30 July 2021 relating to the prevention of acts of terrorism and intelligence.

“Four extremely heavy measures have been made permanent, including the perimeter of protection, used today, underlines Eugénie Mérieau, lecturer in public law at the University of Paris 1 – Panthéon Sorbonne. It is very worrying that one of these four measures is used in the context of maintaining order when there is no terrorist threat.”

It adds that paragraph 3 of this article is not included in the decrees. However, it is important: it provides that, for the protection perimeters, the decree must define the perimeter, and that its scope and duration must be adapted and proportionate to the needs that the circumstances reveal. “This is what is called in law the proportionality test: the measure must be necessary, it must be in line with the aim pursued and it must be proportionate, she recalls. Here, the proportionality test raises questions: is the establishment of the protection perimeter necessary, appropriate and proportionate to the aim of maintaining order? The first problem is a lack of proportionality, ”she analyzes.

Vague motivations

The second is that of motivation. In both decrees, the motivations are “very vague”, she comments. In the Hérault decree, the measures are justified by the “recent attacks or attempted attacks in France [which] reflect a maximum level of the terrorist threat”, supplemented by the presence of the president who “constitutes an extremely strong target given the current social context. “Here, two threats are amalgamated: the terrorist threat, which is the subject of the law and the threat of demonstrations, of freedom of expression, which has no connection with the terrorist threat, and which is not a threat, ”continues the lawyer. The second decree no longer refers to the social context,

“Prohibitions to maintain order must be reasoned and general justifications without detailed explanations are generally considered illegal by the administrative judge”, indicates Eugénie Mérieau. An emergency appeal for summary freedom against the first decree had been conducted by the Association for the Defense of Constitutional Liberties (Adelico), but the judge did not have time to rule before the president’s visit because the decree had been published too late, indicated the professor of public law and member of Adelico, Serge Slama on Twitter. An appeal against the decree of the prefect of Loir-et-Cher was also filed by several associations and the Syndicate of the judiciary on April 25.

“The very principle of freedom of expression is to be uncivil”

These decrees are for Eugénie Mérieau a “hindering of the freedom to demonstrate and the freedom of expression”, a principle laid down by the European Court of Human Rights in the Handyside judgment in 1976.

“The Court recalls that freedom of expression applies not only to the dissemination of ideas considered harmless but above all to ideas that offend shock, worry the public authorities, she points out. The very principle of freedom of expression is to be uncivil, as Emmanuel Macron says, to exercise in this way. The words of the Head of State and the measures taken by the prefects are worrying and mark the illiberal turn taken by the current government,” she criticizes.