… and the cross is a symbol advocating crucifixions

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 § 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 § 86 Abs. 1 Nr. 1, 2 und 4 bezeichneten Parteien oder Vereinigungen verbreitet oder öffentlich … verwendet.

(Any person who, on German territory, distributes or uses symbols of a party or association listed in § 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 § 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.


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Obvious nazi propaganda

The State Court (Landgericht) at Stuttgart recently sentenced a student from the University of Tübingen to the (admittedly mild) monetary penalty of €200, €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 Tübingen.’ 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 § 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 staatsbürgerlichen Aufklärung, der Abwehr verfassungswidriger Bestrebungen, der Kunst oder der Wissenschaft, der Forschung oder der Lehre, der Berichterstattung über Vorgänge des Zeitgeschehens oder der Geschichte oder ähnlichen 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 § 86a to make matters very clear for obtuse prosecutors and judges.

23 thoughts on “… and the cross is a symbol advocating crucifixions

  1. I agree the punishment is ridiculous. But there is another devil’s advocate defence: The fact that some people need to wear these buttons may not point to past dangers but rather to present dangers.

    If I, as a Japanese, saw these buttons I could be lead to believe, erroneously or not, that nazism is still very much alive today – hence the need to have propaganda against it. That would be very bad publicity.

    Or maybe it would just confront the Japanese too much with their own history? Did anyone ask them?

  2. “Nazism is very much alive today.”

    But is it fringe or does it contain the seeds of a popular movement? And how would you identify it when it is wrapped in a veil of implicit nationalism but without the explicit fascism?

    It is tougher than you think. And tricky.

  3. Bob,

    my general view is that we shouldn’t ban speech (or speechoid stuff like symbols). Cliché though it be, the best remedy against bad speech is more (and better) speech. That said, I am sensitive to why Germans might want to act in an excess of caution. And that’s even defensible, so long as the nazi era remains within living memory. In 50 or 100 years, I don’t think such a law would be defensible, let alone desirable. But until the last child of the last victim has died of old age, I am not going to come over all doctrinaire about it.

    Leaving this special case to one side, I would generally oppose laws criminalising nazi symbols or holocaust-denying speech. But not, I add, because I am upset by the thought that fascists are occasionally imprisoned as a result — that’s the one bit of upside to these laws.

  4. If I, as a Japanese, saw these buttons I could be lead to believe, erroneously or not, that nazism is still very much alive today – hence the need to have propaganda against it. That would be very bad publicity.

    But we do not limit free speech because it is bad publicity. Especially if the truth is spoken. This will not stand on appeal, so there’s little use to let our blood pressure rise due to this stupid affair.
    This law has other interesting implications in the age of the internet, so I doubt it is viable in the long run.

  5. “And even worse than reminding foreigners of unpleasant historical facts is being reminded oneself.”

    Vague rambling in response to this thoughtful post…

    As a sometimes resident of Austria, another place where lots of folks were once Nazis, I think this “reminder” is the crux of the matter.

    I also think that glossing over a Nazi past leads to ignorance in the present. I see Nazi graffiti here and there and recently there was a court case here where a stupid young man got tossed in jail because he’d put a pledge to Hitler on his answering machine. His plea? Ignorance. I think that it some cases this plea is correct. Excusable, absolutely not. But correct? Maybe.

    In wanting to avoid reminders that there were once Nazis here, I wonder if there hasn’t been a failure to educate about the past.

    Earnest young anti-racists? Bless them.

  6. Pam,

    actually, Germany has done a pretty good job educating kids about the nazi past. (I have the impression Austria has not done as well, though here I speak with no real authority.)

    The point is, though, it’s a past that is still rippling palpably in the present. When no one is left alive who personally knew the nazi era, or knew personally someone who did, then perhaps yes, it will finally have become in some sense ‘ancient history’ in a way that it cannot yet be allowed to be.

  7. In wanting to avoid reminders that there were once Nazis here, I wonder if there hasn’t been a failure to educate about the past.

    Some people are always stupid or ignorant, willfully or otherwise. In fact, fully one half of the population has intellectual powers below average.
    If you tell every pupil the story 25 times, so that the last idiot gets it, you’ll cause some in the normal majority to flip over from sheer boredom.

  8. I’de just like to say, as a 4th year law student, that if the said student just makes this a constitucional law matter and apeals he’ll probably see the decision changed.

  9. Luis,

    you might very likely be right, but I think the student could well prevail within ordinary jurisdiction (i.e., without going to the constitutional court — in Germany, constitutional jurisprudence is the province of a separate court). I think the Stuttgart court has simply made an error of law in applying the criminal code.

  10. I have the impression Austria has not done as well, though here I speak with no real authority.

    Just to said the record straight, my authority is iffy on this too. 🙂

  11. That was one hell of a good article!

    I agree that the application of the law against *anti*-Nazi symbols is not only ridiculous but also really worrying. It’s one thing to curtail freedom of speech against people who are out there preaching fascism and all sorts of gross violations of human rights, but another to prevent people from campaigning *for* continued human rights by sporting what a protest *against* Nazism.

  12. Ah well you know Mrs Tilton, judges sometimes do these kinds of things, it’s not much to worry about as long as it’s not a general rule and you’ve got higher courts to apeal to. I actualy sometimes think judges are forced to sign a contract with their State in wich they promiss to do dumb and laughable things every once and awhile.

  13. The search order in one of the cases contained these words, too:

    “die Symbole würden “nicht im Sinne nationalsozialistischen Gedankenguts” verwendet. Es sei aber Absicht des Gesetzgebers, dass “Kennzeichen ehemaliger nationalsozialistischer Organisationen aus dem Bild des politischen Lebens (…) grundsätzlich verbannt werden”.”
    (the symbols are” not used in agreement with the nazi ideology”. But the intention of the legislator has been “to the ban symbols of nazi organisations as a matter of principle from political life”).

    To me, I’m earning my life in advertsing, not law, this approach makes sense. It also asks for more and better creativity. Smashing symbols is still s m a s h i n g something and rather fascist.

  14. The use of these ‘symbols’ is expressly allowed in the law if they’re used _against_ Nazism and to educate. That one decision is something to be contested in court and repealed.

    Much more worrying that nowadays mainly the anglophone countries are activating their own forms of fascism and sick xenophobia, while subverting democracy and the rule of law.

  15. ….decent forgetfulness over it. Well, sorry; that can’t be allowed to happen. Post-nazi Germany is one the great success….

    Pray, why can’t it be allowed to happen? Emotional blackmail is not very nice either.

    While I agree all that “you gypsies, you commies, you faggots, you jews” rhetoric is despicable, “We are great, we rock, we rule” is not. There is a subtle but valid difference in the sentiments involved, despite there being a clear causal connection between them.

    History of Nazism, as is generally taught, is filled with so much emphases, justifiably, abosulutely, no doubt, on how rape and murder were perpetrated in so inhuman a manner, that all the good things accomplished also becomes shamefull. A pity, actually.

  16. Anon,

    I’m not sure I see your poinht. My own point is this: if you’re a German, you get to be proud (and rightly so) of Bach and Goethe and Mann and the postwar Wirtschaftswunder and Der Spiegel standing up to that fat corrupt undemocratic bully Franz Josef Strauss, etc. etc. etc.; but you don’t get to pretend that the darker side of your nation’s history didn’t happen.

  17. Mrs T –

    just read the article. Great. I think much of the blatant bollocks going on in Germany these days is directly related to – The World Cup. I was in Paris in 1998 and the French were so cool about the cup. Why can’t we?

  18. Mrs Tilton, please, not this Goethe Bach crap, former President Heinemann said, I don’t love my Vaterland, I love my wife. That’s the way. And btw talking about Vergangenheitsbewaeltigung let’s continue to make a difference between the former Bundesrepublik and the DDR. The DDR behaved like Italy, they were the resistance, they had won the war, no excuses due.

  19. Hans,

    who is suggesting you should love your fatherland? Not I. I’m suggesting you can feel free to love Goethe and Bach (and your wife as well, if you have one).

    You’re right that the DDR, by playing the ‘We are the good Germans, communists who were victimised by the nazis’ card, avoided taking the long cold hard look at itself that the BRD was, on the whole, pretty good about taking. On the plus side of the DDR ledger, though, they didn’t let nearly as many former nazis achieve positions of power and prominence as the BRD did. For example, I’m not aware of any nazi party members who became head of government in the DDR; the BRD, alas, cannot claim the same. (Of course, it’s a scandal that either the BRD or DDR allowed any former nazis at all to play any role whatever in the public life of the nation.)

  20. >Of course, it’s a scandal that either the BRD or >DDR allowed any former nazis at all to play any >role whatever in the public life of the nation.

    Hmm. I think my full support for this statement depends a little on what exactly you are referring to with “any former nazi” and “the public life”.

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