The practice in post WW2 Germany, to restrict free speech far more and to reject an almost complete freedom, as by the US 1st Amendment, are sometimes quoted as examples how the US should respond to an alleged fascist tendency, gaining ground with the Trump election. Would they really be just a small infringement on hate speech, or would they result in arbitrary censorship. So, let’s have a look at the situation in Germany today:
First, we must distinguish between legal restrictions on one side, and social restrictions, that will lead to harsh social attacks, harassment and shunning, on the other side.
The Legal Situation
The legal restrictions are mainly paragraphs §86 and §86a of the Strafgesetzbuch (StGB, penal code), against unconstitutional organizations and symbols, and §130 against “Volksverhetzung”, which loosely translates into “sedition” or “hate mongering”.
§86a bans any kind of historical Nazi symbolism, including swastikas, SS runes, the stiff-armed salute, and phrases like “Sieg Heil”. It is the reason why many video games taking place in WW2 have to be edited for the German market (for films, it has been mostly rated acceptable, as long as it is only a historical depiction). Also, an increasing number of lookalikes and replacement symbols has been outlawed. Communist symbols, like red star, or hammer and sickle, are usually not considered illegal by §86a.
§130 penalizes calls for “hate, violence and arbitrary acts” against groups of the population, and explicitly denial, justification and “trivialization” of the Holocaust, with no clear definition of the last, and glorification of Nazism. In the original version from 1871, in then still imperial Germany, the law had penalized calls for “class fighting”, targeting leftist workers.
Slipping down the Slope
One may think that laws addressing pro-Nazi speech, propaganda, or Holocaust denial, had their origins in the post WW2 occupation period, or at least of the first years after the newly founded state became enabled to make it’s own laws.
But in fact, these laws in the 1950s were rudimentary, compared to today. Major expansion of the above laws occurred in 1994, nearly half a century since the end of original Nazism, after several far-right riots and hate crimes had been leading to a political climate, where everything “against the right” was viewed superior over possible freedom of speech from political restrictions. It was first then that Holocaust denial became explicitly penalized; also, §86a was extended to “look-alike” symbols. “Glorification of Nazism and it’s exponents” followed as part of §130, in 2005. Demands to tighten these and other laws in political “right-wing” contexts occur frequently, especially after largely publicized hate crimes, or events viewed as a strengthening of the far-right. Due to a prevalent attitude to accept an “exceptional” state, when it comes to topics related to historical Nazism, or contemporary far-right activity, and a fear of repercussions, these efforts face little to no challenge.
As usual with free speech debates, the topic is not whether such expression is good, right or acceptable, but whether it is a higher constitutional value, than a political state ideology to be enforced by penal laws. These laws also do not aim to protect survivors of Nazi atrocities from personal offense and humiliation, as often claimed. If it was like that, they could be lifted around 2045, when the last of them could be expected to not live anymore. This is not the case, instead, they guard a state ideology, and are extended every couple of years.
“Youth protecting” Nanny State
Furthermore, the constitution allows infringement of free speech for the “protection of youth”, which is enabled by various “youth protection” laws and a central censorship authority, the BPjM (Bundesprüfstelle für jugendgefährdende Medien, “federal inspection authority for youth-endangering media”). Censorship, if not covered by penal laws, leads to indexing, which makes distribution, sale and purchase very difficult, even for adults. Most indexing targets violent or sexually explicit media content, but indexing has also been applied as a rather arbitrary tool to censor politically undesirable content. Including content that is not neo-Nazi, but is viewed as “potentially trivializing”, such as an anti-abortion website called “Babycaust”.
Extralegal State: Free Speech Limits without Limits
Legal limits on free speech currently only affect a number of fringe positions. This is different, when it comes to public smear campaigns and witch-hunts. Think of Godwin’s Law, and “reductio at hitlerum”: These may be viewed as faulty arguments in the US or elsewhere in the world. But they work different at Ground Zero: being valid defamation techniques in politics and mainstream media. They are applied completely arbitrarily.
As an example, one former TV speaker, Eva Herman, had fallen from grace by promoting a more “traditional” role of women in society, angering the more feminist colleagues. The lurking social “justice” warriors found their chance, when she complained that family values had a “bad name”, because they were allegedly held up in the Third Reich era. Quickly, she was accused of “trivializing” Nazism. A TV talk show was set up, scripted to either publicly execute her, or let her eat humble pie. When she stated that “we today drive on Autobahns, build in the 3rd Reich, and nobody cares about it”, a staged outrage broke out, with the talkshow host stating: “Autobahn – this won’t go at all!”, kicking her out of the show.
Antifa, on the other hand, as extremist gangs who want to perpetrate brutal violence, even against “innocent” bystanders, women and children, don’t need much of justification, in search for pretexts. They use the same kind of defamation techniques, often so that nobody dares to speak up against them. But these campaigns in media greatly help them to give their crimes an appearance of “legitimacy”, especially, if the victims had been targeted by such campaigns before. Since they are an extralegal force, with great support among media, they do not rely on any legal or social limits to practice criminal intimidation, by exploiting historical events and today’s problems with some far-right extremism.
So, while the laws, infringing free speech, are already questionable, the public intimidation outside legal action is, in reality, still far worse.