Do Nazis Have Free Speech Too?

February 16, 2005

German Chancellor Gerhard Schröder, a social democrat, has recently in the wake of the sixtieth anniversary of the liberation of Auschwitz and also of the Allied firebombing of Dresden on February 13-14, 1945 reiterated promises to make neo-Nazi demonstrations more difficult. He has also suggested more severe punishments for certain aspects of neo-Nazi ideology, e.g. which downplays the Holocaust and portrays German civilian dead in Dresden and other German cities destroyed in the war as victims of the “bombing Holocaust.”

It is true that the German civilians who endured Allied firebombing of German cities in an effort to bring Hitler’s war machine to its knees suffered tremendously and tragically. But Chancellor Schröder put it well when he said, with reference to neo-Nazi appellation of the tragedy as the “bombing Holocaust,” that “We will use all means to counter these attempts to re-interpret history. We will not allow cause to be confused with effect. . . . This is our obligation to all the victims of the war and Nazi terror, especially and also the victims of Dresden.

I generally like Chancellor Schröder’s point of view of things.

In spite of this very important observation that cause should not be confused with effect in remembering the civilian dead of German cities firebombed by the Allies, my heart breaks for the ordinary Germans, especially the innocent children, who died horribly in the fiery furnace of a fire-bombed city or who were orphaned very young by this tragedy. Dresden is a stark example of this, but Berlin and Hamburg, among others, were also reduced to rubble.

Dresden, untouched by bombing just months before the end of World War II, was 85 percent destroyed by two waves of British bombers on the night of Feb. 13, 1945. U.S. planes blasted the city the next day.

The official death toll is put at around 35,000, but many survivors believe the actual number was higher as bodies were reduced to ashes in the ensuing firestorm.

The “burning” question, however, is to what extent should the rights of present-day neo-Nazis or other such extremists be curtailed in an interest (1) not to profane the memory of the millions killed by the Nazi Holocaust as well as German civilians who were the collateral damage necessary to break Hitler, and (2) to prevent a neo-Nazi rise to power that could threaten the peace and/or the safety of minorities? All things explicitly Nazi are already outlawed in Germany, such as the swastika, the Heil Hitler, the first verse of von Fallersleben’s Hymn to Germany, and other Nazi marching songs and regalia. But neo-Nazis use the Imperial Flag rather than the swastika flag to mean the same thing, and likewise avoid the other illegal Nazi things in public. The German Parliament is debating to what extent neo-Nazi-related demonstrations and ideology, even if devoid of direct and illegal Nazi references and symbols, should be illegalized. They wish to do so without unconstitutionally abrogating free speech and freedom of expression rights. It is a tricky question.

Today, there was some movement on this question as a proposal is being debated that would add a paragraph to the criminal and sentencing codes that would make glorifying or down-playing Nazi violence and dictatorship a punishable offense if such behavior is meant to disrupt the public peace:

Streitpunkt in der Koalition ist die in dem von Schily und Zypries am Freitag vorgestellten Entwurf vorgesehene Änderung des Paragraphen 130 des Strafgesetzbuches. Ein neuer Absatz 4 sollte das Verherrlichen und Verharmlosen der nationalsozialistischen Gewalt- und Willkürherrschaft unter Strafe stellen, wenn dieses dazu geeignet sei, den öffentlichen Frieden zu stören. Darauf wird in dem Entwurf von SPD und Grünen zunächst verzichtet. Beck begründete dies mit verfassungsrechtlichen Bedenken. Die Formulierung sei zu unklar und habe daher „verfassungsrechtlich nicht ganz unheikel erschienen“.

Der Gesetzentwurf der Koalitionsfraktionen soll am Freitag in erster Lesung vom Bundestag beraten und in den darauf folgenden Beratungen durch Änderungsanträge der Koalition ergänzt werden. Schmidt sagte, nach Möglichkeit solle das Gesetz bereits in der kommenden Woche vom Bundestag beschlossen werden.

But so far, this proposal has not been able to pass precisely because of the constitutional concerns it raises for free speech.

I myself am conflicted; on the one hand, it is repugnant to me that these people, however despicable their views, be disallowed from expressing their views while others with nearly as despicable views (such as communists or others with questionable social agendas) are allowed or even encouraged to express their views. On the other hand, I personally don’t want neo-Nazis to have a bully pulpit every time there is a celebration or commemoration of the victory over Nazi aggression and atrocity. Germany doesn’t have the same exact constitutional framework in place as we do in the United States, so a US First Amendment analysis would be inapposite. It is also likely what causes me to question the appropriateness of abridging these neo-Nazis’ free speech rights (even though I don’t agree with their viewpoint). Luckily for Germany, their constitutional framework mandates the state to respect the dignity of human life (which has also played a role in Germany’s approach to abortion) while at the same time outlawing direct Nazi references based on the public interest and the unique history of Germany. My feeling is that this new law criminalizing expression sympathetic to the Nazi period will pass. Although it would and should never pass in the American democratic process, the Germans have their own democratic process and public needs that are determined at least partially by this unique history. In that sense, I hope that the Germans will do the right thing for their own situation.