France: The Yellow Vests, the Right to Protest and the Conseil Constitutionnel

In its recent decision, the Conseil Constitutionnel held that the central provision of the law restricting the right to protest – which allowed administrative authorities to forbid someone from protesting in the absence of any judicial condemnations – was unconstitutional. In the singular context of the yellow vest movement, this decision was widely awaited and one could at first analyze it as the illustration of a constitutional court stepping in, in turbulent times, to prevent the political branches from encroaching on a fundamental freedom. However, the rationale of the decision, as well as other parts of the holding, leads to a much different vision. At play is the progressive erosion of liberties, in the name of security, aggravated since the state of emergency following the 2015 terror attacks. This movement has not spared the judicial bench. Both the law and the decision of the Conseil indeed bear the marks of the state of emergency, and reveal an undeniable backsliding of the protection of fundamental rights.

The right to protest is a singular right. Recent studies in comparative public law revealed both the strong rhetoric highlighting the importance of the right and the restrictions that concretely affect its exercise. While the right is celebrated “for being at the core of any functioning democratic system”, it is at the same time severely restricted because of the threat to the public order it represents. Freedom to protest is deemed to be fundamental, in that it is “one of the conditions of democracy”, as Norberto Bobbio recognized, but it is also feared in light of its inherent disruptive nature, and therefore restricted because the Bill of Rights is “not a suicide pact”. This paradox and the structural tensions that engulf the right to protest have been on show during the last several months in France.

On the one hand, the protests of the yellow vest movement, which started in November 2018, have been hailed by some as the “awakening of the French democracy”. The protests organized every Saturday by the movement were therefore celebrated as the illustration of a spontaneous bottom-up movement, embodied by citizens in the streets and on roundabouts, fighting against economic inequality. On the other hand, officials denounced the blockades and the excesses of the movement which led to infamous scenes of violence in Paris and other cities during certain protests. Radical proposals were thus discussed to severely restrict the right to protest.

In addition to the structural tensions inherent to the right to protest, contextual tensions also contributed to this liberty being restricted. These latter tensions are the “leftovers” of the state of emergency, which officially ended in October 2017 but whose measures have, to a large extent, been incorporated into ordinary law, and whose rationale has invaded the mind of public officials.

Both the law enacted by Parliament in March 2019 and the decision of the Conseil Constitutionnel about its constitutionality are indeed marked by the “spirit of the state of emergency”.

A lesser protected liberty

Before turning to the recent law, it is necessary to have in mind the fragile status of the freedom to protest in the French legal order. For a long time, the freedom to protest was not protected. The famous law from 1881 on liberté de réunion did not apply to protests in the streets. Quite the contrary, it explicitly forbade protests in the streets. Freedom to protest was thus more generally conceived as something that could be tolerated, rather than a true legal right. A French politician famously declared “I am not sure that there is a right to protest, but I am sure that there may be and must be a tolerance for protest”.

Freedom to protest was more generally conceived as something that could be tolerated, rather than a true legal right.

The legal regime of the right to protest was established by a decree-law in 1935, whose provisions  have been incorporated in the homeland security code and are still in force. The principle is that protests must be declared a priori at the townhall and can be forbidden if authorities deem that the protest may cause a public disorder. During the second half of the twentieth century, courts generally tolerated restrictions on the freedom to protest that would not have been deemed legal for other liberties, accepting for instance the ban of certain protests without considering whether there were less restrictive alternatives.

However, in 1995, the Conseil Constitutionnel recognized the constitutional value of the “right of collective expression of ideas and opinions” which encapsulates the freedom to protest. The Council of State, the highest administrative court, also recognized that freedom to protest was a fundamental liberty, although its jurisprudence kept showing its fragile status in practice.

During the state of emergency, declared in 2015 following the terrorist attacks, Parliament twice modified the regime of state of emergency to restrict the right to protest. In 2016, Parliament allowed authorities to ban protests whenever they invoke the fact that they do not have the means to ensure security. In 2017, after a nullification by the Conseil Constitutionnel, it enacted a provision allowing authorities to ban anyone against whom there are serious reasons to believe that their behavior represents a threat for security and order from entering certain areas.

These measures, limited to the state of emergency, made fragile an already under-privileged freedom.

The radicalism of the “law aiming to reinforce and ensure public order during protests”

A few years ago, a scholar presented the right to protest as an “unfindable freedom”, due to its poor status and the lack of knowledge displayed by those supposed to ensure its protection.  MPs seem to have validated this thesis when they proposed in June 2018 a law restricting the right to protest and explained that Article 7 of the Declaration of the Rights of Man and the Citizen of 1789 “protects the right to peacefully assemble”. This provision does not protect such a right and deals with criminal procedure instead. MPs likely wanted to refer to Article 7 of the Declaration of the Rights of the Man of 1793, which deals with the right to protest, but has no legal standing in French law. This is illustrative of the troubling misconceptions and confusions about freedom to protest displayed during the parliamentary debates.

This proposal in June 2018 was a reaction to the violence committed during protests on May 1 2018. It comprised a series of preventive and punishing measures. The central provision, Article 2, allowed administrative authorities – not a judge – “to forbid anyone from protesting whenever his taking part to the protest would constitute a risk of particular gravity for the public order”. The text finally voted on by the Senate in October 2018, before the beginning of the yellow vest movement, allowed authorities to ban someone from protesting “when there are serious reasons to believe that his behavior constitutes a threat of particular gravity for public order, when he has committed certain infractions or belongs to a group or is in contact with individuals abetting the commission of these facts”.

French law already allowed judges to ban people from protesting, as a result of a condemnation for certain infractions. Here, the “novelty” lies first in the fact that administrative authorities would have such powers, as a preventive measure, and second in the fact the criteria retained were very vague. What does it mean to belong to a group or to be in contact with individuals abetting the commission of such facts? Indeed, this looks like guilt by association.

This provision was not voted on by the National Assembly. It is only in the beginning of January 2019 that this proposal resurfaced. Following acts of violence committed during certain yellow vest protests, Prime Minister Edouard Philippe announced that “rioters would not have the last word”, and called for the enactment of “a tougher law”, inspired by the legislation targeting soccer hooligans, and relying on the proposal voted on by the Senate in October 2018. One MP even said that “those who break (rioters) should be broken”, recalling the famous words of a former homeland minister about “terrorizing the terrorists”. The message was that a strong response was necessary, and the authorities needed to flex their muscles.

The National Assembly started discussing the text voted by the Senate in late January. As mentioned, debates revealed troubling confusions. One MP thus said to another MP that she was “wrong about the constitutional status of the right to protest: it is not an absolute right and can be restricted to protect public order”. Most constitutional rights, such as freedom of speech or freedom to protest, can be restricted, and the fact that they can be limited does not deprive them of their constitutional value.

More revealing is the troubling ease with which MPs justified and legitimized such an exceptional measure as the one allowing administrative authorities to preventatively ban someone from taking part in a protest.

They relied on two kinds of precedents.

The first one is the law allowing administrative authorities to ban someone from going to a stadium when, because of his overall behavior during sporting events or because of his taking part in grave acts, he represents a threat to public order. This exceptional measure adopted in 2006 relied on very vague criteria and raised itself serious constitutional issues. However, it is one thing to allow exceptional measures in the case of hooligans and regarding restricted areas such as stadiums, it is another to adopt that same rationale for protesters in spaces open to the general public. Relying on such a precedent and extending it to the freedom to protest amounts to a severe restriction of a constitutional right.

The second precedent on which MPs relied was the state of emergency. It is declared in case of imminent danger stemming from grave breaches to public order or in case of calamities. It results in a huge increase of the powers of the administrative authorities and police powers. They can adopt measures that would otherwise be illegal under normal circumstances.

After two years of state of emergency between 2015 and 2017, and six laws extending its application and modifying its regime, it seems that MPs have become accustomed to the exceptional. The baseline thus keeps being moved further down.

Therefore, the administrative ban relied on two exceptional regimes, with the spirit of the state of emergency allied to the very singular mechanism of the administrative ban of stadium.

This is illustrated in the final wording of the provision adopted by the members of the National Assembly.

The text states that when, because of acts committed during previous protests that led to grave infringement of physical integrity of people and serious damages to goods, or because of violent acts committed during previous protests, someone constitutes a threat of a particular gravity to the public order, administrative authorities can forbid him to take part in a protest.

One should note that even though this version is more precise than the one voted on by the Senate, the wording remains vague. How should we interpret “acts committed” and “violent acts”? This is all the more important since police services frequently use “notes blanches” to back their claims that someone constitutes a threat to public order. These are anonymized and undated reports which are in practice entitled to a presumption of accuracy in courts. The difficulties raised by these documents, in terms of burden of proof, were illustrated during the state of emergency. Besides, it appears that someone can be subjected to a ban even though his own actions did not directly infringe on anyone’s physical integrity or result in damages committed during previous protests. The text seems to only require that the protest in general led to these consequences, even if the actions of the particular individual did not.

It is interesting to note how a law that restricts a liberty is presented as an instrument of its protection.

The wording retained is directly inspired from the logic of the state of emergency. The expression “constitute a threat of particular gravity” derives from the law adopted in October 2017, which incorporates into ordinary law most of the measures authorized during the state of emergency. Going further back, this expression was used by the Conseil Constitutionnel a few month earlier in a decision about house arrest under the state of emergency. This cycle reveals how legal formulations and solutions inherited from the state of emergency are progressively incorporated into ordinary law, and used in the present case to limit the freedom of protest.

The text was voted with 387 votes for, 92 against, and 74 abstentions but it provoked wide tensions among the majority.

One MP vigorously denounced the text, calling it “pure madness” and linking it to the Vichy regime, while the Minister of Interior declared that the law was merely intended to protect the right to protest. It is interesting to note how a law that restricts a liberty is presented as an instrument of its protection.

While it was expected that the text would be amended during its second discussion before the Assembly, in light of its fragile constitutionality, the Senators in fact adopted the same text as the members of the Assembly, thus completing the legislative process.

Unsurprisingly, MPs from the opposition referred the law to the Conseil Constitutionnel. In a surprising and unusual move, President Macron himself also referred the law to the Conseil, a law adopted by MPs from his own majority. It is only the second time that a President has decided to refer a law to the Conseil.

The ambiguities of the decision of the Conseil Constitutionnel

In its decision, the Conseil declared that the provision allowing the administrative ban violated the “constitutional right of collective expression of ideas and opinions”. By nullifying the main provision of the controversial law, and by displaying its use of the proportionality standard, the Conseil presented itself as a defender of constitutional rights. The holding seems logical, even though some observers considered it to be “dangerous” and “unfair” to other liberties threatened by the abuse of the freedom to protest. In other words, they blamed the Conseil for not being protective enough of public safety and public order.

The Conseil’s decision opens the door to a more tailored measure that can pass constitutional muster.

However, looking beyond the holding and focusing on the reasoning, one can see the ambiguities of the Conseil’s decision. The provision was held to be unconstitutional not because of the principle it relied on – the extension of the powers of administrative authorities – but because of the scope of the ban and the criteria retained.

The Conseil thus opens the door to a more tailored measure, and can be seen as giving the legislative branch guidelines on how to pass constitutional muster. It is hard to disagree with the Conseil’s developments concerning the fact that the criteria are imprecise, and the ban disproportionate. It is also undeniable that the rationale of the provision, authorizing administrative authorities, and not the judge, to preventively ban someone from exercising a constitutional right hardly seems compatible with the liberal philosophy France prides itself to be based on.

The fact that the modalities are rejected, not the principle in itself, is thus troubling. The principle therefore “lies like a loaded weapon” to use the famous words of Justice Jackson.

Furthermore, the rest of the provisions of the law were held constitutional, without substantiated motivation even though they raised serious constitutional issues. One can thus be skeptical of, for example, the provision establishing a punishment of one year in jail and 15 thousand euros fine for anyone who partially hides his face in a protest or near a protest where breaches to public order are committed or may be committed.

There are many ways to interpret this decision. Some observers point out that it constitutes a win-win, with the opponents of the law being satisfied that its main provision is nullified, and its proponents rejoicing that the rest of the law passed. Others would criticize the brevity of the decision, the lack of depth of the analysis and the superficial use of the proportionality standard. One could also see this decision as an illustration of the present times, where the spirit of the state of emergency, with its increase of the powers of the administration to the detriment of the judge, has spread and won over not only MPs but also the judicial bench itself. As Benjamin Cardozo famously declared “the great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by”. It is hard to deny that the great currents are actually eroding liberties in the name of security, while not even guaranteeing it.

Idris Fassassi is a professor of public law at the University of Picardie - Jules Verne.