You will all recall, I’m sure, that Germany had a problem with nazis sixty or so years ago. After this problem had been cleared up (primarily by non-Germans), the Germans resolved that they didn’t want that sort of thing to happen again. And towards that end they enacted some laws.
One of those laws is Â§ 86a of the Criminal Code. In pertinent part it reads:
Mit Freiheitsstrafe bis zu drei Jahren oder mit Geldstrafe wird bestraft, wer … im Inland Kennzeichen einer der in Â§ 86 Abs. 1 Nr. 1, 2 und 4 bezeichneten Parteien oder Vereinigungen verbreitet oder Ã¶ffentlich … verwendet.
(Any person who, on German territory, distributes or uses symbols of a party or association listed in Â§ 86 para. 1, 2 and 4, shall be punished with imprisonment of up to three years or with a monetary penalty.)
The parties and associations in question include what the statute somewhat coyly calls ‘the former national-socialist organisations’.
Though nobody decent likes a nazi, a prohibition against displaying their symbols on pain of criminal penalty does rub rather against the liberal grain. Still, this is Germany, and one can understand why Germans feel they need to take a sterner line against this sort of thing than would, say, Americans.
Now you have all heard about the annoyance of skinheads and other excrescences of neo-nazi yoof culture in Germany. What you might not know is that there is also a countervailing and at times rather, ehh, exuberant anti-nazi cultural stream. This ranges from admirable young students acting earnestly against racism and xenophobia to beersodden neonhaired neopunkers who (one sometimes suspects) know as little about what they oppose as their fuzzy-skulled adversaries know about what they espouse, save that it pisses off their opposite numbers. Wherever on this spectrum of seriousness Germany’s young antifascists fall, many of them are united in the use of certain popular symbols to express their disdain for the brown. These symbols are typically displayed as buttons or on patches sewn (or quite often, safety-pinned) onto one’s bomber or biker jacket. You’ll find some pictures below the fold.
Whether idealistic antifascists or mohawked louts, these are not the sort of people, surely, that Â§ 86a was meant to sweep up. Yet as the Frankfurter Rundschau reports, a few German prosecutors have been using this law against them, and some German courts are handing down convictions.
Obvious nazi propaganda
The State Court (Landgericht) at Stuttgart recently sentenced a student from the University of TÃ¼bingen to the (admittedly mild) monetary penalty of â‚¬200, â‚¬150 of it set aside on probation. The student had been sporting a button with a swastika surrounded by the familiar red circle-and-slash. And this is no isolated episode. As the Rundschau reports, the police have raided a Stuttgart mailorder house, confiscating the controversial articles as well as the customer lists. They took the latter so that the prosecutor’s office can draw up charges against the customers.
The student who has already been sentenced argued — rather compellingly, one might think — that nobody on earth could possibly mistake the import of the slashed-out swastika; nobody could possibly mistake it for anything other than an antinazi statement. The prosecutor countered that he was not concerned ‘about John Q. Citizen, but about the Japanese tourists here in TÃ¼bingen.’ And who knows, perhaps he’s right — perhaps in Japan the red circle-and-slash means something altogether different.
I do not know whether the student in question is reading law. If he is, the prosecutor might want to look to his job, for the student understands the law in question better than he does. Sec. 86a Criminal Code incorporates by reference certain provisions of Â§ 86, which state among other things that the display or use of nazi symbols is not a criminal act where it:
serves civic education, resistance against anti-constitutional activities, artistic or academic purposes, research or teaching, reporting on current or historical events or similar purposes.
(…der staatsbÃ¼rgerlichen AufklÃ¤rung, der Abwehr verfassungswidriger Bestrebungen, der Kunst oder der Wissenschaft, der Forschung oder der Lehre, der Berichterstattung Ã¼ber VorgÃ¤nge des Zeitgeschehens oder der Geschichte oder Ã¤hnlichen Zwecken dient.)
I’m no judge, but I’d have to say that the prosecutor, and the court, are plainly misreading and misapplying the law. And though their concern for the Japanese tourists is touching, the Japanese are not known as a stupid people. It’s unlikely they’ll mistake the meaning of a swastika crushed by a fist, stabbed with a dagger or hurled into a rubbish bin.
Those Japanese are, however, the key to understanding why the prosecution and court in this conservative southern state reacted as they did. To a certain type of German, nothing is worse than talking about embarrassing matters in front of the children, the servants or the foreigners. In the eyes of this sort of German, the harm caused by the student’s button is not that Japanese tourists will mistakenly think the student a nazi. The harm is that they will be reminded, correctly, that many Germans were once nazis.
And even worse than reminding foreigners of unpleasant historical facts is being reminded oneself. There is a wide swathe of the German bourgeosie that, while genuinely appalled at the country’s nazi past, wishes nothing more heartily than that a line be drawn under it and a blanket of decent forgetfulness over it. Well, sorry; that can’t be allowed to happen. Post-nazi Germany is one the great success stories of democracy. But that story has a prologue, and a corollary. Today’s Germany has many achievements in which it should take justified pride. But it must never lose sight of the shame — justified shame — that drove it to achieve these things.
As I noted above, many of Germany’s antifascist youth are appealing, engaged young citizens. Some of them are irritating oiks. But none of them should be punished — under an antinazi law, of all things! –for expressing their rejection of the evils their grandparents unleashed. The SPD, one of the parties in Germany’s governing coalition, have promised to look into the matter, and if necessary propose changes to Â§ 86a to make matters very clear for obtuse prosecutors and judges.