A past decision of the French State Council which has dangerously extended the concept of “public morality”.

In a decision on December 8, 1997, the French Conseil d'État issued a ruling regarding the municipality of Arcueil, which prohibited the advertising of “pink courier” services in 1990. Despite some positive aspects, particularly with regard to the municipal ruling, the Conseil d'État has nevertheless set a dangerous precedent by proposing an extension to the concept of public morality.

On May 14, 1990, the mayor of the town of Arcueil banned advertising for pink courier services, i.e. communications services billed for sexual purposes, by telephone or on the Internet. According to the mayor's reasoning, these services are contrary to public morality, and therefore promotions contrary to the interests of citizens residing in the municipality. Deprived of one of its sources of income, the Paris Transport Advertising Authority brought appealed the decision before the Paris Administrative Court, which also granted this request.

Objectively, everything suggests that the Arcueil judgment defends the values of individual freedom by opposing the mayor's order and rejecting his interpretation of “public morality”. The State Council does not reject the concept of public morality in itself, but rather considers that the order does not give an explanation as to how public order had been disturbed.

Far beyond that, the Council explains in its decision that the violation of morality is "established". Indeed, it has been accepted since the 1950s that, in addition to the traditional trilogy of security, health and public tranquillity, the administration may, in the exercise of its powers as a general administrative police force, pursue a goal of public morality.

The turning point marked by the Arcueil decision concerns the broad field of the term “morality”. At first, its restrictions concerned only film censorship, to prevent traditional cinemas from showing provocative films of a sexual nature.

For any liberal, this judgment violates the principle of private property. Through this case law, the State Council extends the application of public morality, thus setting a dangerous precedent. The next generation may well be more conservative than ours, which is reprehensible in itself, but becomes dangerous for public freedoms if the jurisprudential excuse of public morality applies. Historically, we have already seen examples of this in case law, including fairly recent cases:

• 1924: the Conseil d'État confirmed an order of the town of Châlons-sur-Marne, prohibiting boxing fights on the city's territory for "moral hygiene" reasons.
• 1953: the mayor of Bignon may ban fairground shows on grounds of good order, morality and public safety.
• 1959: the Conseil d'État ruled that "a Mayor, responsible for maintaining order in his municipality, may prohibit the representation on its territory of a film to which the ministerial operating visa has been granted, but the screening of which is likely to cause serious disturbances or to be, because of the immoral nature of the film and local circumstances, detrimental to public order" in a decision involving the municipality of Nice.
• 1985: the State Council decides that the town of Aix-en-Provence may ban the screening of the film Le pull-over rouge based solely on the 1959 decision.
• 2005: The Conseil d'État confirmed that the Mayor of Houilles may prohibit the opening of a sex shop near schools and municipal services for young people.

Any morality can only be individual, not an interpretation of the justice of a centralised and dominant nanny state. Significant legislative changes are needed, in order to combat decisions such as the above-mentioned.

Picture is Creative Commons 0.0, @fredmarriage