There is a French comedian sitting in jail for posting Je suis Charlie Coulibaly to his Facebook page after the massacres in France last week. Coulibaly is the name of the gunman who killed a policewoman and later four people in a kosher (i.e., Jewish) supermarket last weekend, coincidental to the massacre at Charlie Hebdo but not clearly related. The comedian, Dieudonné M’bala M’bala, had been arrested many times for violating laws against anti-Semitism before this latest dustup. Apparently, French prohibitions on hate speech only protect the feelings of Jews, and mainly regarding references to the Holocaust, as Charlie Hebdo routinely blasphemed both Christ and the Prophet without official sanction.

French authorities, who had no trouble tolerating the anti-Islamic sarcasm of Charlie Hebdo’s cartoonists, have suddenly decided that some speech is just too offensive to bear. So they are rounding up anyone and everyone who expresses solidarity with the attackers. According to the New York Times, up to 100,000 are under suspicion. Many have already been arrested and sentenced, including a man who shouted a slogan in their support as he drove past a police station. He got six months. Another man who was arrested for drunk driving and later expressed support for the attacks at the police station got four years.

There is a doctrine in US Supreme Court First Amendment jurisprudence (the First Amendment to the US Constitution is where the right to free speech, among others, is found) called the ‘fighting words’ exception to free speech. Speech in a public place intended to incite violence or likely to incite violence can be prohibited for the purpose of preserving the public peace. France prohibits speech that might invoke or support violence, carving a free speech exception by statute that the US Supreme Court has done judicially.

In the US case establishing the fighting words doctrine, Chaplinksy v. New Hampshire (1942), Chaplinksy, a Jehovah’s Witness, was on a street corner preaching his theology, particularly the aspect that denigrates all other organized religion as frauds, when a hostile crowd gathered and a ruckus ensued. He was then arrested under a New Hampshire law prohibiting “any offensive, derisive or annoying word to anyone who is lawfully in any street or public place … or to call him by an offensive or derisive name.” The Supreme Court unanimously upheld his conviction, stating in its majority opinion that

There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.

France considers the shouted slogan of a young man in support of the attackers as he is hurrying past a police station on a motor scooter as supporting or invoking violence, but it can’t see that a majority culture cruelly poking sarcastic fun at a minority’s deeply held religious beliefs might also invoke or support violence. Chaplinsky was arrested because his speech was so provocative and offensive that his safety, along with the public peace, was threatened. How is what Chaplinsky did so different from what Charlie Hebdo’s journalists were doing? Chaplinsky’s actions were more immediately likely to result in violence, as the mob that had gathered was apparently well on its way to expressing its displeasure. But both parties, Chaplinsky and Charlie Hebdo’s journalists, were being outrageously disrespectful to things that others held to be sacred.

If France had no problem with what Charlie Hebdo was doing, it should not now have trouble with those who express their displeasure at what Charlie Hebdo was, and is, doing by their expression of support for the attack upon the magazine. It is hard to see where there is more danger of invoking violence in allowing the expression of support for the attack than there is danger in allowing Hebdo to keep on publishing its mocking blasphemes of Islam.

The French law under which speech is prohibited for invoking or supporting violence, and its law that prohibits any questioning of the Holocaust or denigration of the Jews, are bad laws which would likely be thrown out by the Supreme Court if enacted in the US; in the first instance, for having been discriminatorily applied, and in the second, for impermissibly prohibiting the content of speech rather than its time, place or tenor.

The French authorities are making a mistake by trying to round up anyone who utters an expression of support for the attack or the attackers. They will not succeed in suppressing the sentiments from which the speech arises; they will only succeed in pushing it underground. And if their aim is to prevent the next attack, they should welcome any all expressions of support as valuable intelligence on who might be worth tracking more closely.

For a government to be legitimate, it must zealously defend its monopoly on the use of violence as a means of influencing behavior. It does itself no favors when it dissipates its monopoly by enforcing prohibitions of behaviors that are offensive but otherwise harmless. If Charlie Hebdo can be strikingly offensive to Muslims through its aping of Mohammed, then Muslims should be allowed to be strikingly offensive to Charlie Hebdo through expressing support for the attackers. Supporting an act of violence in the abstract can not be equated to committing an act of violence. Some in the Muslim community might be happy that the Charlie Hebdo cartoonists were massacred. That doesn’t mean they would have done anything to bring as much about. Anyone who dies, including French cartoonists, leaves behind both mourners and celebrators. The French government needs to give up trying to win the hearts and minds of those offended by the massacre and instead concentrate on catching and punishing the perpetrators. It can’t imagine that arresting anyone who expresses support for the attack will lessen the possibility of a future attack. It will instead make a future attack practically certain, providing all the proof the Islamists need that the French government is oppressive and unfair to its Muslim population. Each time France makes an arrest for uttering a word of sympathy for the attackers it is recruiting for the Islamists in ways that even the most radical and tech-savvy Imam could only dream.

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