Years ago, I served on a jury that had a bit of trouble making up its mind. After we sent the judge a lot of notes asking questions, which seem to have tried his patience, he brought us back into the courtroom to impress upon us a distinction. There are questions of law and there are questions of fact, he said. It wasn’t up to us to decide what was against the law and what wasn’t; the state legislature had already done that. We were only responsible for answering a question of fact. Had the person in the dock actually done what the prosecution accused him of doing?

In practice, of course, questions of law and questions of fact can be quite entangled, even in courtrooms. In the tradition known as jury nullification, juries have sometimes deliberately skewed their answers to questions of fact because they disagree with a legislature’s decisions about law and intend to override them. But the distinction seems useful, even if it’s rarely absolute, and I’d like to suggest that a distinction like it may help in parsing the dispute currently raging over the American freedom-of-expression advocacy group PEN America and the French satirical newspaper Charlie Hebdo.

Ten of Charlie Hebdo’s staff and contributors were murdered by Islamic extremists in January, and PEN America is planning to give a Freedom of Expression Courage award to the newspaper at an upcoming gala. Some writers who belong to PEN—six originally, but the number jumped to thirty-five and then to ninety—believe that Charlie Hebdo ought not be honored, because they believe that some of the newspaper’s content was racist and bigoted. It’s with some trepidation that I set out to write about the dispute, because I’ve been friendly for a long time with writers now on both sides of it. I’m also a member of PEN, though up to this point in my life I haven’t been able to afford to attend galas like the one in question, and if I received an invitation to this one, I probably deleted it without paying much attention. (I may never have even received it at all, because I have a habit of unsubscribing from email lists.)

Belatedly and at my own peril, however, here is what I have to contribute: I think that there are two kinds of questions being debated in the matter of PEN and Charlie Hebdo, and that they’re being mixed up with each other in a way that makes it hard for the two sides to see what they’re arguing about. The distinction I’d like to make isn’t between law and fact, because there aren’t any serious questions of law here; in France as in America, legislatures decided long ago that it’s a crime to kill a person for something he said. The distinction I’d like to make is between questions of ethics and questions of fact. I think that the two sides are under the impression that they disagree about ethics, when in fact most of them probably agree. I think, however, that they disagree vehemently about the questions of fact at hand, even though both sides believe that the answers to these questions of fact should be obvious even to casual observers.

Ethics first: Of course it’s wrong to kill a cartoonist for even a racist or bigoted cartoon, but is it right to honor a murdered cartoonist for courage if the cartoon that provoked his murder was racist or bigoted? In such a case, should the cartoonist be considered courageous? Much of the PEN-Charlie Hebdo debate is being conducted as if these are the central questions. But as ethical questions go, they’re pretty sophomoric. If you had asked the debaters a year ago what they thought the answers were, I think you would have got near unanimity in their responses. Yes, technically, a cartoonist killed for a racist or bigoted cartoon was being courageous if he drew it knowing that he might be killed for it. But no, it isn’t right to honor him. We distinguish all the time, and pretty sharply, between courage in what we consider to be a just cause and courage in what we consider to be an unjust one. It probably takes a fair amount of courage, moral as well as physical, for a member of the Westboro Baptist church to show up at a military funeral with a sign proclaiming that God rejoices in the death of American servicemen because he hates America’s toleration of sodomy. And in America, it’s a matter of civic faith that the government should protect the right to hold up such a hateful sign even before such emotionally vulnerable readers. But not very many people I know would want to praise the church member for it.

In the past week, I’ve seen people refer to the cartoons in Charlie Hebdo as “hate speech.” And if it seems to you that cartoons in Charlie Hebdo are racist or bigoted, then you will probably think it’s tone-deaf, complicit, or maybe even outright racist of PEN America to give the newspaper a posthumous award. But if, on the other hand, it seems to you that the cartoons are innocent of malicious bias, you will probably think it’s spineless, if not cowardly, for PEN America to hesitate to give the award. Feelings get hurt when people call one another complicit with racism or spineless in the face of terrorism, and the pitchfork bearers of the village Internet welcome volleys of such accusations with glee. What I’d like to suggest is that the question of ethics, though high voltage, is secondary in this case to a question of fact. I think most people would agree on what to do about PEN and Charlie Hebdo if they could agree on the logically previous question: Were there racist or bigoted cartoons in Charlie Hebdo?

How can you tell a racist cartoon from one that merely references racial stereotypes? It’s a delicate question to raise, because debate on it has been inhibited in many quarters by the notion that it ought to be obvious when a message is racist or bigoted, and that those who fail to recognize racism or bigotry as soon as they come across it are either pretending ignorance or revealing a fault in their inner moral compass. The bulletproof answers aren’t “Yes” or “No,” but “Of course it is” or “Of course it isn’t.”

The facts on the ground don’t, however, conform to this polarity. In America’s cultural ecosystem, for example, we tend to grant a fair amount of license to moviemakers and stand-up comedians to deploy racist and bigoted stereotypes. (My sense is that in America, editorial cartoonists are on a somewhat tighter leash—more on that in a minute.) The tacit permission depends in some cases on a sense conveyed to the audience that the comedian’s underlying impulse is to bring a stereotype out into the open so as to defuse or discharge it. Audiences also tend to give a pass if the stereotype in question is relatively new to it, at least in its details, and seems to have been captured by the comedian through affectionate and intimate observation, as if it amounted to something like reportage. Audiences usually grant greater leeway to a moviemaker or comic who belongs to the race, religion, or sexual orientation that he’s mocking. (It’s not clear that Kant would approve of this greater leeway. How much difference should the identity of the comedian make on the justness of an audience’s enjoyment of a racial, religious, or sexual stereotype?) In a limited number of cases, like that of Quentin Tarantino, it almost seems that license is granted merely on account of the almost palpable quote marks that appear around the deployed stereotypes and the cleverness with which the moviemaker riffs on them.

In other words, it may be obvious at a glance whether an image or a phrase refers to a racial, religious, or sexual stereotype, but to determine whether a message or a work of art is racist or bigoted, a viewer has to consider the current politics and recent history of issues associated with the identity being stereotyped, as well as previous uses of the image or phrase in other works and messages, and has to make a subjective assessment of the intentions of the comedian or moviemaker. And even then, different observers may come to different conclusions. Often they do.

The cartoons in Charlie Hebdo were captioned in French, and they depended for their meaning on memes that won’t be familiar to anyone who isn’t a regular reader of French newspapers and watcher of French television. I can read French, but I don’t keep up on French domestic politics, and I draw a complete blank when I first look at most Charlie Hebdo cartoons. In the past week, many people have said they aren’t funny, and yeah, I have to agree. They aren’t funny. I think there are two reasons. First, they’re puerile—pitched at roughly a Mad Magazine level of sophistication—and in the American ecosystem, editorial cartoons are usually a little more tony, and don’t seem to have as broad a permission to engage with racial imagery as movies and comics do. Taste is to a great extent learned, and I’m afraid that an American reader of my ilk just isn’t likely to find vulgar and puerile cartoons about politics much to his taste. But second, and more globally, Americans can’t find these cartoons funny simply because the cartoons always have to be explained to us. We don’t recognize the political figures being caricatured; we don’t know the political slogans being tampered with; and we haven’t surfed the particular waves of enthusiasm and disgust that have been flooding French political life lately, and on the surge of whose waves these cartoons sprang into being. In America the waves that flooded us were a little different.

By this point, I’ve probably tipped my hand, and I’ll go ahead and lay my cards on the table: I don’t happen to think Charlie Hebdo is racist or bigoted, and I think that some of the American writers who have condemned it must have had the subtitles off while they were trying to make a determination that can be tricky to make even about an American message designed for American consumption. More than three million French citizens rallied in solidarity with Charlie Hebdo a few days after the January murders. Were those marchers complicit with racism or bigotry at the newspaper, or unwilling or unable to recognize them? Maybe, but I doubt it. There’s a debate worth having about whether the French policy of laïcité is a sufficiently merciful and flexible way for a democracy to handle the separation of church and state, but I strongly doubt that there would have been such a broad outpouring of support for Charlie Hebdo in France if it had been a French analog of the Westboro Baptist Church. When it comes to telling whether a French newspaper smells sweet or sour, I think the French are likely to have the more discerning noses.

Still, the French have been known to get things wrong, and some of the Charlie Hebdo cartoons do look pretty awful at first glance to an American eye. But even in the worst-looking examples that I’ve seen, the object of the satire always turns out, upon research, to be the racist tropes and ideology that the cartoonist believes are lurking just below the surface of slogans circulated by French rightwing politicians. Or the impious impulses that the cartoonist believes are hidden beneath a cleric’s pious front. A number of websites have been glossing the cartoons for a non-French readers—Explaining Charlie Hebdo is the most comprehensive one so far—and I encourage doubters to take a look.

It’s possible, of course, to see the antiracist message of one of the Charlie Hebdo cartoons as no more than a cover for an underhanded relishing of the racist imagery deployed in it. Parody usually does participate to some extent in the energy of what it parodies; that is one of the risks it runs. Humor is not pure. It speaks to us through our flaws, as well as speaking to us about them—envies and hates, as well as greeds and lusts—and it can’t exist without the license to work with dark materials.

Instead of ending with a peroration, I’m going to end with a request for empiricism. I don’t think you can know where you stand about PEN and Charlie Hebdo unless you’ve made a judgment about Charlie Hebdo‘s humor, and if you haven’t been living in France in the past few years and following the news there, I don’t think you’ll be able to do that fairly at a glance but will need to take a little time in order to understand its foreign context.