Germany Aims to Ban Ascendant Far-right From Giving Nazi-like Speeches, but Law Isn't on Their Side

Whether the shutting off of microphones in parliament, or heightened action by the media and intelligence services, German politicians and Jewish leaders hope to keep the conversation civil

Defaced election campaign posters of Angela Merkel's Christian Democrats and the Left Party in  Altenberg, Germany, September 27, 2017.
Matthias Schumann / Reuters

COLOGNE, Germany — They’re now 13 percent of the lower house of parliament: legislators for the far-right Alternative for Germany party, many of whom have a record of anti-Semitic or racist comments. But a number of German politicians, Jewish groups and lawyers are wondering what they can do to prevent legislators from the party, the AfD, from giving Nazi-like speeches in the Bundestag.

AfD politicians might even find their microphones shut off as they’re talking.

Still, these efforts may prove difficult. The law on incitement to hatred and violence makes anti-Semitic or racist speech a criminal offense in Germany. It was drafted very much with the Holocaust in mind and calls for long prison terms and high fines.

But AfD members have been very skillful in tiptoeing around it. For example, in January the AfD’s Björn Höcke gave a speech in which he called Berlin’s Holocaust memorial a “monument of shame.” Ninety-two individuals and organizations urged prosecutors to bring criminal charges against Höcke for incitement, but the lawyers felt that, based on German law, they would not be able make such charges stick.

“To count as incitement from the perspective of the law, the speech in question clearly has to urge two or more groups of the population to attack each other violently,” says Matthias Jahn, a criminal law professor at the Goethe University in Frankfurt and a leading voice on the incitement paragraph in German law.

“The hurdles for a speech or statement to be legally considered incitement are very high. ‘Words must be used as weapons’ is the saying among lawyers here. Höcke’s speech did not fulfill that.”

Differing views

Alexander Gauland, an AfD leader, may not have been as careful as Höcke. He recommended that Germany “dispose of” Integration Minister Aydan Özoguz “in Anatolia; experts say he is more likely than Höcke to have problems with the law regarding incitement to hatred and violence.

This is especially the case because the effort is being driven by former Supreme Court Justice Thomas Fischer, a strong voice against anti-Semitism and racism. “If this isn’t incitement, I don’t know what is,” Fischer says. “If this isn’t punished, you might as well delete the whole incitement paragraph.”

But Jahn is more cautious. “All lawyers in Germany have Mr. Fischer’s standard book on German law on their desks, so naturally it’s hard not to consider his arguments carefully,” Jahn says.

“But the options for the prosecutors are very limited. They can either issue a penalty order and initiate criminal proceedings, which may not lead to a conviction but gives Mr. Gauland a big stage to voice his opinions once again. Or they can recommend that he be fined, but again he ... is given the opportunity to present himself as a victim. Or the prosecutors can drop the charges altogether.”

Legal experts like Fischer and Jahn fear that once AfD members actually sit in parliament in three weeks — after becoming the Bundestag’s third largest party in the September 24 election — it will be almost impossible to prosecute them for racist or anti-Semitic speeches. In addition to parliamentary immunity, legislators will also be protected by a so-called indemnity paragraph.

“That paragraph sets the threshold even higher for prosecution: statements must insult a sufficiently differentiated group of people among the German population to count as criminal,” Jahn says. “For example, insulting ‘the Jews’ wouldn’t trigger criminal charges. Insulting ‘the German Jews’ is a borderline case but more likely than not also wouldn’t trigger charges. What would count is ‘the Jews that currently live in Frankfurt.’ But the AfD will be careful to get this specific.”

Ways and means

In any case, several AfD members have potential legal proceedings and even prison sentences hanging over their heads, but still have continued making anti-Semitic or racist statements.

An attempt by former Justice Minister Heiko Maas to ban the party altogether before the September election proved too difficult legally. This effort would have used the same legal model as two attempts to ban the neo-Nazi NPD party, which failed miserably and embarrassed Chancellor Angela Merkel’s government. But Maas’ efforts have prompted domestic intelligence agencies to closely monitor the statements and actions of AfD members in the future for anything unconstitutional.

Even before the election, the other parties have discussed simple processes that can stop any racist or anti-Semitic speech in the Bundestag immediately in its tracks. In fact, state parliaments where the AfD is represented have tested buttons that shut off a microphone if a politician says something disconcerting. The Bundestag’s incoming president, Wolfgang Schäuble, would be in charge of the button and is known as a solid authority figure and strong guardian against anti-Semitism.

In addition, Jewish and anti-racism groups have become very involved. The Amadeu Antonio Foundation, for instance, a large organization fighting anti-Semitism in Germany, has issued a 15-page memo with recommendations for new parliamentarians, but also for news organizations and schools on how to counter dangerous AfD narratives.

“The biggest mistake would be now, if the other parties would engage too much with AfD’s agenda,” says Timo Reinfrank, their executive director. One of the foundation’s recommendations is simply to exclude certain AfD members from parliamentary sessions, if needed, for instance, on Holocaust Remembrance Day. Otherwise, parties should simply not comment on AfD speeches more than deemed necessary.

But Reinfrank says that “when minority rights or basic rights are questioned, the other parties simply have to show a clear and united front against this.”