The mayor of Amatrice against Charlie Hebdo. A blunder
The case of the City of Amatrice, which has sued the French satirical newspaper Charlie Hebdo for the cartoons on the earthquake, deserves some thoughts on the rights of satire and its limits
First, we need to clarify that Article 51 of the Criminal Code provides, among the causes of exclusion of a crime, that of the exercise of a right: in the case of defamation, as a case in point, the exercise of a right may be represented either by the right to report or the right to criticize or even by the right of satire. All stem from the more general right to free expression of thought enshrined in Article 21 of the Constitution.
In order for the exercise of these rights to operate and therefore make lawful a conduct that would otherwise be defamatory, it is necessary that there are the requirements of truth, countenance of expression and public importance are upheld. Now, it is a consolidated heritage both for the doctrine and the case law that, in the case of the right of satire, such requirements – unlike for the rights to report and criticize – operate in a different way: in fact, satire, for example, cannot be anchored to criterions of truth, like the freedoms of the press of critcism are.
We need, therefore, to ask whether they can take into account the requirements of countenance and public importance. The second, as evident, is upheld almost automatically, given that satire takes aim at those in power and its characters and as such, what deserves our attention is the requirement of expressive countenance. Now, already recently, national jurisprudence (by implementing European Community pronunciations) believes that for the existence of both a right to report and for a right to criticize it is sufficient that the entity which undertakes the conduct (possibly) using smear language that can also be strong, vibrant and overtly hostile, can do so as long as the language itself does not reach the merely vulgar insults.
That being the case for the exercise of the right to report and criticize, can there be a further limitation to the language when it comes to satire? On this point, the courts have held that the satirical language, because of its peculiarities, can go further and touch the paradox and the linguistic hyperbole because it is a non-conventional language thawt cannot be evaluated in accordance with the principles that oversee the conventional languages instead.
Of course, this does not mean that everything can be granted and in fact, the Supreme Court held that the only insurmountable limit to be regarded is that of mere mockery or scorn that can affect the human dignity itself (in this regard there has been a ruling that condemned a cartoonist who had drawn some senators in the act of practicing fellatio with the Senate seat’s microphone).
Of course, precisely because of its function of corrosive criticism to power, adopting ridicule and sarcasm and even surreal rewriting of a fact, the European Court of Justice, precisely under Article 10 of the ECHR, has further widened the language possibilities, believing, for example, that satire on religions should be tolerated in its broadest form, provided that it does not attribute to the religious message a repulsive value.
More recently, the European Court of Justice has expressed an opinion on a cartoon that depicted an attack by Hamas with the caption “We’ve been dreaming it for a long time.” The Court, in this case, felt that it could well be possible to produce ironic satire of an attack, given the fact that often the satire was also gruesome, but in this case what was not tolerated was the use of the verb “to dream” denoting approval, and not derision, of terrorism.
Therefore, in the light of all this, how to consider the satire by Charlie Hebdo? Beyond the judgments, in the present case we can not ignore two aspects: the first is the given by the nature of the paper on which the cartoon is published, and therefore from the context, which makes possible the use of language further to the limit, as opposed to what would have happened if the cartoon were to be published in any other information daily; the second is given by the signifier used by the editors who have meant the cartoons as seeking to denounce the state of public works in Italy, the issue of earthquake-resistant buildings and that of organized crime that often there speculates. All reasons that frame the cartoon in the natural limits of the function of satire. That there were then portraits of the dead, for a civilian type of complaint, it is a circumstance that can not denote any unlawful conduct, notwithstanding the issues of opportunity and humanity, of course.
It is for these reasons that we believe that the City of Amatrice is committed, at least legally, to a blunder.