Germany's Nazi Exception: Constitutional Court OKs Curtailing of Free Speech

By Dietmar Hipp

Germany's constitution strongly and explicitly protects the freedom of speech. Still, the country's highest court has now said that -- given the injustice and horrors of the Nazi regime -- it is constitutional to make an exception that bans speech glorifying Hitler's ideology.

Neo-Nazis gather in Wunsiedel in 2001 for a parade to honor Hitler deputy Rudolf Hess. Zoom
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Neo-Nazis gather in Wunsiedel in 2001 for a parade to honor Hitler deputy Rudolf Hess.

Wunsiedel is a small town of about 10,000 in the northeastern corner of Bavaria. Every year, on one particular day, this otherwise sleepy town is on high alert. In late August, thousands of people come here from all over Germany and abroad. Dressed in black, these neo-Nazis come to march in commemoration of Rudolf Hess, the Hitler deputy and convicted war criminal who has been buried here since 1987.

Some of the locals board up their houses and get out of town. Others bring banners to protest the parade and even block it with vehicles used for transporting liquid manure. In 2004, the town's mayor, Karl-Willi Beck, launched a campaign called "Wunsiedel is colorful, not brown." Together with town councilors, church officials and citizens, he tried to block the streets. A group of skinheads insulted him as a "traitor to his fatherland" and a "grave desecrator." The neo-Nazis threatened to run him out of town.

But, since 2005, he hasn't had to deal with the crowds. In that year, the Bundestag, the lower house of Germany's federal parliament, passed an amendment that strengthened the legal article dealing with incitement to hatred. Otto Shily, who was Germany's interior minister at the time, said that it was done "in solidarity with the democratic public of Wunsiedel." The amendment was meant to make it easier to outlaw neo-Nazi commemorative marches in Wunsiedel and elsewhere. The amendment worked. And, last year, the Federal Administrative Court confirmed the decision upholding a ban on such assemblies based on the new law.

Still, Jürgen Rieger, the recently deceased Hamburg-based lawyer and neo-Nazi who organized the Hess commemorations, was determined to keep marching. To do so, he placed his hope in Germany's Federal Constitutional Court, based in Karlsruhe. Sure, the judges had already dismissed a number of Rieger's expedited motions. But, in this case, they had expressly determined that the new ban "raised a series of difficult constitutional issues." However, they also felt that these were not the type of questions that could be dealt with in expedited proceedings.

Challenging the Amendment

Now, the Constitutional Court has finally decided that the strengthening of the article in the penal code is constitutional -- and that the administrative court's ban on such assemblies can logically follow from it. Although the judges have determined that Rieger's constitutional complaint is "unfounded," their decision, announced on Tuesday, also shows the enduring trickiness surrounding the fourth paragraph of Article 130 of the German Penal Code. That paragraph prescribes a sentence of up to three years for whoever "approves of, glorifies or justifies the violent and despotic rule of the National Socialists" in a way that "disturbs the public peace in a manner that violates the dignity of the victims."

In German law, if a complainant dies, a legal case is usually closed. Accordingly, Rieger's sudden death in October almost allowed the legal dispute to remain unanswered. But, in this case, the judges believed it was warranted to still deliver a judgment that was long in the making. It was their belief that, since the decision was meant to clarify a legal issue that "transcended the highly personal matter of the complainant" and applied to "a number of future gatherings," the decision had "a general constitutional significance."

Wrangling over Wunsiedel

Neo-Nazis held their first march to honor Rudolf Hess, their "martyr of the fatherland," in Wunsiedel in 1988. Two years later, the march saw violent confrontations between skinheads and counterdemonstrators. As a response, the gathering was outlawed in 1991. For years, various courts approved the ban.

But, beginning in 2000, Rieger was given the legal green light to start marching again. The increasingly astute lawyer was able to persuade the Constitutional Court with his arguments. In 2003, the court's justices determined, on the one hand, that there was "no indication" that the police were not able to carry out "their duties" related to preventing and combating individual criminal acts and, on the other hand, that "glorifying persons and ideologies of National Socialism" could not, in and of itself, be used to justify a ban on such gatherings.

Peter Seisser, a member of the Social Democrats (SPD) who represented Wunseidel's district in the state parliament at the time, was not impressed with the ruling. He said that -- according to its legal reasoning -- if it gave the go ahead for a march for Hess, then it couldn't forbid a public ceremony to commemorate Adolf Hitler. In early 2005, 40 prominent residents of Wunsiedel -- from state-level politicians to Catholic priests -- traveled to Berlin to ask members of the federal parliament specializing in domestic issues to draft new criminal legislation specifically tailored to Wunsiedel's particular situation. "They really pestered us," recalls Cornelie Sonntag-Wolgast, who chaired the Bundestag's Internal Affairs Committee at the time. "It was one of the major reasons we managed to get a majority to amend this law."

Legal Wranglings

The amendment made itself felt. Whether it was in Wunsiedel, Magdeburg, Aachen or Hanover, a whole series of demonstrations were outlawed for providing "sufficient indication" that events surrounding the gatherings would violate the newly amended law.

But, in the wake of the decision, there was also serious doubt about whether the strengthening of the penal code was constitutional. It's a doubt that has now actually been confirmed by the Constitutional Court.

According to the Basic Law, the name given to Germany's constitution, limitations of freedom of speech are only permitted when they are based on a "general law." In the case of this paragraph, however, the justices determined that it is not a "general law." What's more, earlier court decisions also hold that such a law cannot "be directed toward the expression of an opinion as such." Instead, it must serve to protect a "legal right per se, without regard for a certain opinion."

The Nazi Exception

Ulli Rühl is a Bremen-based expert on constitutional law and legal philosopher. Already during the process of drafting the law, he warned that, in constitutional terms, the proposed expansion of the law against incitement was very "borderline." As he saw it, "in point of fact," the law only applied to "adherents of old- or neo-Nazi ideologies," which automatically meant it wasn't "free of bias when it comes to opinions." And Rieger criticized the law on his Web site, saying things like: "Stalin killed over 30 million people, but he can be glorified."

Still, if you look at the reasoning of the Constitution Court in a certain way, you can see that the Germans are in no way trying to pass judgment on Stalin's crimes. Rather, the real issue here is the horror of Hitler's regime.

In a sense, the fact that Germany's Basic Law was meant to consciously and decisively make a break from the Nazi era means that, in its very essence, it is designed to explicitly forbid Nazi propaganda. As the judges put it, the Basic Law can "almost be understood as the exact opposite of the totalitarianism of the Nazi regime." For this reason, they claim, it is permissible to have "regulations that set limits on the propagandistic endorsement" of the Nazi regime and that this was permissible -- as an exceptional circumstance -- as a targeted restriction on one's freedom of speech.

When it comes to Rieger's argument that the march was only meant "to honor Rudolf Hess," the Federal Administrative Court had already delivered a decision that shot it down. According to that court's decision, a "reasonable observer" would have "clearly recognized" that the commemorative march -- if it were to ever be held again -- "would endorse the totality of the National Socialist regime without restriction."

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