In the aftermath of the terrorist attacks, the French government rounded up a number of people sympathetic to the horror unleashed on the offices of Charlie Hebdo. All told, French police have arrested or are investigating around 100 individuals for making comments that support or attempt to justify the barbarity.

In the aftermath of the terrorist attacks, the French government rounded up a number of people sympathetic to the horror unleashed on the offices of Charlie Hebdo. All told, French police have arrested or are investigating around 100 individuals for making comments that support or attempt to justify the barbarity.


As the New York Times aptly observes, this raises a question about double standards in France. There apparently exists a double standard where cartoonists are free to disparage Islam, but Muslims are not free to voice their opinion —- morally abhorrent as it may be —- in support of the violence.


Therein lies the proverbial rub about free speech. The ethical canons of free speech require tolerance for the intolerable. Setting aside slander and liable, which are acts couched in falsehoods, the only acceptable limitation to free speech is a prohibition against that which poses a demonstrable harm to the public.


The key in the French situation lies in proving that the hate and vitriol espoused in the pro-terrorist reactions are in fact a real call to arms. For the sake of argument, let’s say they are. Banning such small-minded speech is an insult to an even more precious human right —- free will. This kind of law says that we are not smart enough to recognize lunacy when it’s laid bare before us.


"But what if this hate speech is just the push the weak-minded need to incite violence?" If it were, then we better find a means to preapprove all public speech, because there are a whole lot impressionable idiots out in the wild.


A lit match can illuminate the darkness and it can a start a forest fire. By the French logic, we should ban matches because you never know who’ll light one with evil in their heart.


Of course we don’t have to throw transatlantic stones. Every state in the U.S. has a law addressing the problem of disorderly conduct. Disorderly conduct statutes are by their nature and design vague. They are a catchall for disposal of persons engaged in what noted criminologist Egon Bittner describes as, "something-that-ought-not-to-be-happening-and-about-which-somone-had-better-do-something-now!"


In my home state, Arkansas, the disorderly conduct law opens with, "A person commits the offense of disorderly conduct if, with the purpose to cause public inconvenience, annoyance, or alarm or recklessly creating a risk of public inconvenience, annoyance, or alarm, he or she…" and then it goes on to enumerate a number of situations in which certain acts would be prohibited. Some of these are on face valid. One shouldn’t be permitted to expose their genitals, nor should they be allowed to obstruct traffic or fight in public; but then we get to a much grayer and subjective set of prohibitions, "(3) In a public place, uses abusive or obscene language, or makes an obscene gesture, in a manner likely to provoke a violent or disorderly response; (4) Disrupts or disturbs any lawful assembly or meeting of persons."


What constitutes public obscenity is one of the most enduring legal debates of the modern era, and disruption of a lawful assembly could in the extreme, mean revocation of the right to confront one’s government. More to the point, if the Ku Klux Klan marches down Main Street, do we really want to ban people from jeering and heckling the pointy-headed morons?


Then there’s subsection eight, "In a public place, mars, defiles, desecrates, or otherwise damages a patriotic or religious symbol that is an object of respect by the public or a substantial segment of the public."


I don’t want to see the flag burned or the image of Jesus defiled, but if we protect those sacred things because they are "an object of respect by… a substantial segment of the public" then don’t we also have to ban the fools who paint Hitler mustaches on pictures of Pres. Obama? Like him or not, he is an object of respect by a substantial portion of the public.


Protected speech isn’t easy because it’s a moving target. We need some fetter on public expression just like we need restrictions on disorderly conduct, but lines like the French have drawn only serve to circumscribe freedom, not villainy.