In what sense are we “Charlie”?

Charlie Hebdo is a disgusting publication. Take away the crude sex and the over-the-top hostility to religion, and we are left with very little.

In what sense, then, are we Charlie?

We are Charlie in the important sense that Islamists want to kill us whether or not we express crude anti-Muslim sentiments. And we are Charlie because we flourish under, and should insist upon, the regime of freedom that permits over-the-top expression such as the cartoons that so offend Muslims.

But Charlie Hebdo raises questions about the precise contours of a proper regime of freedom. Ruth Marcus has accused the French of “fuzziness over free speech.” Jonathan Turley has raised the same issue.

Their complaint is justified. French law criminalizes speech that insults, defames or incites hatred, discrimination or violence on the basis of religion, race, ethnicity, nationality, disability, sex or sexual orientation.

This goes too far. Marcus points out that Brigitte Bardot was convicted in 2006 for having said of Muslims in France, “We are tired of being led around by the nose by this population that is destroying our country.” Yet, this statement is quintessentially the kind of speech that should be protected. If citizens can’t warn others of a phenomenon they believe (misguidedly or not) is threatening the country, there is no true freedom of speech.

Some of Marcus’ other examples of French fuzziness are less persuasive. The French government, she says, is investigating as many as 100 people for making or posting comments that support or try to justify terrorism.

Advocacy of terrorism (or on behalf of terrorists) is quite different from ridiculing religion or criticizing its members for “destroying our country.” It is not hypocritical to prosecute the first form of speech while defending the second.

Under this regime, there will, of course, be close cases. What for example, should we make of Dieudonne M’bala M’bala, whom Marcus accurately describes as a distinctly unfunny and anti-Semitic comedian? He is famous for his barely disguised “Heil Hitler” salute and his openly anti-Semitic jokes.

In my view, these expressions should be protected. So should his post-Charlie statement that he feels like “Charlie Coulibaly” (the last name of the murderer at the kosher store). Construing this comment as an expression of solidarity with Coulibaly, the French government arrested Dieudonne and charged him with “incitement of terrorism” for this expression of association with a deadly terrorist.

In fact, however, Dieudonne doesn’t seem to have been inciting terrorism; rather, he was making this point: “I am looked upon as if I were Amedy Coulibaly, when I am no different from Charlie.”

The point is fair, or at least arguable. Dieudonne, with his Nazi-style salute, comes closer to inciting violence than Charlie Hebdo or Bridgette Bardot. But until he argues in favor of violence against Jews, his speech should be protected.

Where speech is truly free, the government gives citizens’ statements an “innocent construction” — it tries to find a fair sense in which statements are legitimate advocacy rather than calls for violence. The French government seems to be doing just the opposite with Dieudonne.

To that extent, the French government is not Charlie.