Why hate speech is punished with the law in Germany – DW – 02/22/2025

Freedom of expression is guaranteed in article 5 of the basic law, the German Constitution, which also makes it clear that this freedom has limits to, for example, protect young people, privacy or personal honor.

The protection of personal honor plays a particularly important role in the German legal system, said lawyer Ralf Postcher, director of the Max Planck Institute for the study of crime, security and law in Friburg. “This originates in the time of history in which the notions of honor were even more important. They were then adopted by the middle classes and joined our legal system.”

Is defamation allowed?

It is a criminal offense in Germany insulting others, and it is also illegal to spread lies that degrade others. That means that freedom of expression is much more restricted in Germany than, for example, in the United States, says Nadine Strossen, professor at the New York Law Faculty. Former President of the American Union of Civil Liberties (ACLU), Strossen is known as a strong defender of freedom of expression.

“The law of the first amendment of the United States, which is our constitutional disposition that protects freedom of expression, is one of the strongest, I think it is fair to say that it is the most protective national law of speech in the world,” Strossen says. The first amendment prohibits laws that restrict freedom of expression.

This also means that insults and defamatory lies are largely covered by freedom of expression. “So, if you think the message is hateful, or you think the message is extremist, or you think the message advocates violence: any negative content that has the message, that alone will never be enough to justify suppressing it in our country.”

Denying the holocaust is illegal

Strossen’s father survived the Buchenwald concentration camp. However, she believes that it should also be legal to deny the holocaust. In Germany, on the other hand, it is a criminal crime publicly denying Nazi genocide.

This falls under what is known as “hatred incitement.” Any person who incites hate or violence against certain ethnic, religious or national groups can be sentenced to up to five years in prison.

Expressing your political opinion is allowed whenever it is not a hate speech, says legal expert Poscher. “Freedom of expression and freedom of assembly protect all kinds of opinions. Even those at the extremes of the political spectrum.”

That is why, for example, right -wing extremist groups can celebrate demonstrations in Germany. “Of course, they are not allowed to cross the line when it comes to intimidation, insults, degradation and the like, but they are certainly allowed to disseminate ideas that are not in line with the Constitution.”

Only when those considered enemies of the Constitution are organized in such a way that they represent a threat to democracy can intervene the State. In this case, associations and parties can also be prohibited. Known as ‘defensive’ democracy, the objective is to prevent Germany from becoming a dictatorship again, as was during the Nazi era.

Is it better to ignore than prohibit?

Strossen believes that all this is well intentional. However, she says she would not get closer to the goal of protecting human dignity. “I think that the paternalistic approach is actually not only denying individual freedom, but ultimately is ineffective,” he said. “History shows that the best way to get the attention for your message is to expect someone to protest and try to close it.”

“A very worrying vector is the emergence of the AFD,” says Strossen, referring to the extreme right -wing alternative of Germany for the Germany party (AFD) that has doubled support in the last three years. “Many analysts say that this is happening not despite the efforts to punish the expression of hatred, even for the leaders of that party, but precisely because of that. That increases attention, which increases sympathy, which increases suspicion and distrust of conventional parties. ” Strossen believes that that is why it is better to ignore hatred and agitation than prohibit them. False statements can be refuted, she says.

Debates on the limits of freedom of expression have intensified since the emergence of social networks. It has become possible for anyone publicly expressing their opinion, even if that means spreading hatred and agitation.

According to a study sponsored by the German family ministry, almost one in two people in Germany has been verbally abused online. A quarter of respondents said they have undergone physical violence and 13% to sexualized violence. Of the respondents, 55% said they were less likely to participate in discussions as a result.

Ralf Postcher describes this culture of online debate as “describe.” “Where people are belittled, insulted and attacked with an avalanche of hate comments. This also means that many people no longer participate in the public debate.” But this is the basis of a vibrant democracy. Therefore, there is much to say in favor of “insisting on a certain courtesy in the public debate.”

According to Strossen, Germany is later than the US. When it comes to protecting sexual speech or implies naked. As she said, “Americans are notoriously wet.” Showing the breasts of a breastfeeding woman, that is when the censors would intervene in the United States, she says.

This article was originally written in German.

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