“Outrage aux bonnes mœurs” [affront to public decency] in France (19th-20th centuries)
The eleventh article of the Declaration of the Rights of Man and of the Citizen of August 26, 1789, at the beginning of the French Revolution, states: “The free communication of ideas and of opinions is one of the most precious rights of man. Any citizen may therefore speak, write and publish freely, except what is tantamount to the abuse of this liberty in the cases determined by Law” (our emphasis). These exceptions, “determined by Law,” to the freedom of expression have significantly restricted this liberty through the following centuries and up to the present day. One of the most notable exceptions is “outrage aux bonnes mœurs” [affront to public decency], the French legal equivalent of obscenity, which first appeared among the “Delicts committed in the way of Writings, Images, or Engravings” in Napoleon’s Penal Code of 1810 (article 287). In fact, freedom of expression in print did not come into effect in France, except for very short periods at the beginning of the French Revolution and in the early 1830s, until the promulgation of the Law on the Freedom of the Press of July 29, 1881, which is still in effect with several amendments (see the current version). This Law did not erase, however, but on the contrary reaffirmed the criminal nature of “outrage aux bonnes mœurs”: an affront to public decency committed through “the sale, distribution or exhibition of [writings,] drawings, engravings, paintings, emblems or images deemed obscene.” This specific restriction to the freedom of the press in France was reasserted several times in the twentieth century, notably through the Decree of July 29, 1939 [art. 119]—just before the outbreak of World War II—as well as the Law no 57-309 of March 15, 1957, which states that “The judicial police officers may, before any prosecution, seize the writings, prints, drawings, engravings, […] which, by their nature contrary to decency, present an immediate danger to public morality” (art. 290). The “outrage aux bonnes mœurs” disappeared from French criminal law when the new Penal Code took effect on March 1, 1994.