Who is free from public comment?
France's freedom of expression is being challenged in court – by teachers.
France is known for its great restaurants. Chefs are singled out and graded by anonymous critics who award or withdraw stars to their restaurants. So seriously are these grades taken that from time to time a chef will commit suicide upon losing a star. Yet no starless chef has ever turned to the French judicial courts for relief from this scrutiny. Recently a more sensitive group, one that enjoys tenure for life, sought and won deliverance from their critics in a French court.
A website went live in January allowing students in France to grade their teachers online based on six specific criteria such as motivation, interest, and clarity. The teachers were named. The students, for obvious reasons, remained anonymous.
This did not go over well with teachers. The main teachers' union sued to shut down the site, and a French trial court ruled in its favor, citing that freedom of speech ends when it affects teaching and that an uncensored discussion forum risked "becoming polemical."
The practice of students grading their teachers began long before the Internet, but did not seem to have given rise to litigation. The worldwide reach of the Internet, though, has raised the ante.
Another site that has gained recent popularity in France is one for posting anonymous evaluations of doctors. Lawyers, dentists, accountants, veterinarians, perhaps even judges, cannot be far behind. They, too, may be subject to globally published appraisals. Is this a good or bad thing? Is it an exercise in freedom of speech or an invasion of a right to be free from public comment?
Freedom of expression is guaranteed in France and the other 46 countries of the Council of Europe by the European Convention on Human Rights, which states that "this right shall include freedom to hold opinions and to receive and impart information and ideas." Of course, there are well-known exceptions in Europe as in the United States. Defaming others, inciting violence, or, as Justice Oliver Wendell Holmes wrote, "to shout fire in a crowded theater" are off limits.
But what constitutes defamation or an invitation to violence is not always clear. An expression of an opinion is generally not defamatory if it is made in good faith and not maliciously, but malice is subjective. If a student gives a teacher a bad grade on a website, who knows if his or her intent is malicious?
If my doctor or dentist made me wait three hours in his office and I post a note to that effect online, am I acting maliciously or just informing the public? If I thought my lawyer charged too much for his services or failed to keep me informed about my case and I post my observations on the Internet citing his or her name, am I defaming my lawyer, invading his privacy, or simply expressing my opinion?
Of course some comments and student grades may not be justified. There may have been a good reason that the doctor kept me waiting three hours. He was operating, and the surgery took longer than anticipated. The lawyer's fee may have been lower than what other lawyers charge for the same service. The teacher may have given an excellent lecture but the students who appreciated it did not happen to post their reaction. Yet the expression of misinformed opinions should not be an adequate reason to suppress speech or restrict publication.
The idea of free speech is that people should be able to express their views without constraint, even if their views are wrong. Out of the chaos and struggle of conflicting ideas, better ideas emerge.
That teachers would sue to stifle student speech that reflects upon their own performance sets a depressingly low example of the value placed on that freedom by the teachers' union. Nor is it encouraging that the French minister of education supported the union in its suit to suppress nondefamatory speech.
The teacher case has been appealed. Let's hope a French appellate court will show a more robust appreciation of what is perhaps the most fundamental of all freedoms. Meanwhile my wife has proposed creating a site where wives can grade their husbands – but that surely falls beyond the scope of free speech.
Ronald Sokol practices law in Aix-en-Provence, France. He is the author of several books and articles, including "Justice After Darwin, Freedom of Expression in France: The Mitterrand-Dr. Gubler Affair."