Despite a rich French history of expression art and literature, there is not much of a tradition of free speech in France. In fact, the French Republic has as bountiful a history of criminalizing expression dubbed dangerous to the state as it does of nurturing some of mankind’s most prolific satirists.

The French response to the attack on Charlie Hebdo has largely been heartening. Millions poured out into the streets in protest of the murder of cartoonists and journalists, and millions more worldwide expressed abhorrence over this outrageous attack. It has been enough to renew your faith in humanity. There is, however, a dark side to the backlash against the attack on that comedic periodical.

The outspoken anti-Semitic French comedian Dieudonné M’Bala M’bal recently felt it was a noble demonstration of defiance to compare himself to the terrorist who killed four hostages at a kosher supermarket in Paris last Friday. “As for me, I feel I am Charlie Coulibaly,” he said, lampooning the global slogan of solidarity “Je Suis Charlie.”

It was a tasteless display, but not one which deserved the punishment he received. Dieudonné was arrested and faces charges associated with making an “apology for terrorism.”

Dieudonné is in abundant, if not good, company.

“Authorities said 54 people had been arrested for hate speech and defending terrorism in the last week,” the Associated Press reported on Wednesday.

France has been tightening security and searching for accomplices since the terror attacks began, but none of the 54 people mentioned Wednesday have been linked to the attacks. That’s raising questions about whether Hollande’s Socialist government is impinging on the very freedom of speech that it so vigorously defends when it comes to Charlie Hebdo.
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Like many European countries, France has strong laws against hate speech, especially anti-Semitism in the wake of the Holocaust.

In a message distributed to all French prosecutors and judges, the Justice Ministry laid out the legal basis for rounding up those who defend the Paris terror attacks as well as those responsible for racist or anti-Semitic words or acts. The order did not mention Islam.

As noted yesterday, France has a growing problem with anti-Semitism and many believe that Europe’s history of anti-Semitic violence justifies curtailing the rights for those who would profess their sympathy for violent extremists. But Americans with an abiding appreciation for the Constitution and the Bill of Rights are obliged to show some dissatisfaction with this crackdown on speech.

There are a few who would contend that America, too, has its own constraints on free expression codified into law. These critics often cite the overused and poorly understood saw that you cannot “yell fire in a crowded theater.” Of course, you can yell “fire” in a theater, provided the theater is on fire. The presumption in this phrase is that the offender has set out to cause an undue panic.

National Review’s Charles C. W. Cooke further noted that this axiom owes its ignominious origins to a dubious period in American history in which the fear of the nascent Bolshevik revolution overtook reason in the courts.

“Because the most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic,” the Court reasoned, the Wilson administration could imprison anti-war types whose words damaged recruiting, or even just “morale.” If that sounds silly, rest assured that it was. But it was worryingly common to the era. The Holmes Court held pretty much the same thing in a trio of cases over the next couple of years, sending Eugene Debs to prison for anti-war socialism, incarcerating a newspaperman named Jacob Frohwerk for criticizing the government in print, and shutting down German newspapers in Philadelphia for their intentions to “chill and check the ardency of patriotism.” A rotten principle indeed. That anybody should quote these incidents, a nadir of American democracy, in defense of his position is grim. That a U. S. senator should do so is unconscionable.

The United States also proscribes the incitement to violence in speech, including in broadcast media. A broadcaster cannot take to the airwaves with the aim of sparking a riot. It is, however, particularly hard to convict on this charge. Prosecutors must prove intent on the part of the instigator as well as the fact that the violence which followed was both “imminent” and “likely,” according to the Supreme Court’s decision in Brandenburg v. Ohio.

Americans often fail to live up to their nation’s founding ideals. It would, however, be imprudent to reserve objections to France’s overreach merely because Americans are equally fallible. France’s problem of anti-Semitism and fundamentalist violence will not be addressed by making martyrs of those who hold those toxic views.

Ill-fated Democratic standard-bearer and former New York state governor Al Smith famously told his audiences during his 1928 presidential campaign that “The only cure for the ills of democracy is more democracy.” Likewise, daylight is the best and only disinfectant when it comes to offensive speech and dangerous ideas. Free and unfettered expression is not only the cause of but also the solution to so many seemingly intractable societal evils. So, let freedom reign.