Attack on freedom of expression? This is how the CDU/CSU and SPD want to tighten the "incitement to hatred" law

What do the CDU/CSU and SPD think about freedom of speech ? The coalition agreement, in which the federal government outlines its plans, has sparked a debate about government restrictions on free speech. One of these is the passage stating that "the deliberate dissemination of false factual statements" is not covered by freedom of speech. This was criticized as a "ban on lying" and is said to have been a reaction to the speech by US Vice President J.D. Vance at the Munich Security Conference .

Secondly, the agreement envisages a tightening of the offense of incitement to hatred. How exactly Section 130 of the Criminal Code will be expanded remains unclear; the coalition has not yet agreed on details. While some legal experts warn against a change in the law, politicians from the CDU/CSU and SPD are now commenting more specifically on the matter.

CSU politician Hierl: “We want to reduce these gray areas”

In the coalition agreement, on page 90 in the section on criminal law, it states: "We want to combat terrorism, anti-Semitism , hatred, and incitement even more intensively, and to do so in particular by strengthening the offense of incitement to hatred." This is one of those announcements by the CDU/CSU and SPD that begins with the word "want" rather than "will." This may also be due to the fact that the coalition partners have not yet agreed on an exact wording. This is likely to be a challenge indeed. The term "hatred and incitement," in particular, is not clearly defined; it is used in very different ways.

So far, no news has been received from the Federal Ministry of Justice, headed by SPD politician Stefanie Hubig. In response to an inquiry from the Berliner Zeitung, a spokesperson cautiously replied that the ministry is "reviewing the question of implementing the project in question." Perhaps that's why it was announced with "want." No details, such as a possible timeline, can be provided at this time.

While the coalition agreement justifies the tightening of the law quite generally – citing terrorism, anti-Semitism, and "hate and incitement" – specialist politicians are more explicit. Susanne Hierl, the legal policy spokesperson for the CDU/CSU parliamentary group, told this newspaper: "Current law does not currently provide for criminal liability for denying Israel's right to exist and calling for the elimination of the State of Israel , although criminal liability is necessary and appropriate due to the inherent threats to public peace and also due to Germany's special historical responsibility." For years, it has been apparent that "certain forms of incitement" are deliberately formulated in such a way that they remain just below the criminal threshold. This can be observed particularly online.

"We want to reduce these gray areas," says the CSU MP. If there is systematic incitement against social groups without existing criminal offenses such as "incitement to hatred" or "incitement to violence" clearly applying, there is a "need for legislative action."

Carmen Wegge, the SPD parliamentary group's legal policy spokesperson, also says that criminal law does not always "adequately" apply. She speaks of an increasing coarsening of language in public discourse, an increase in contemptuous, racist, and anti-Semitic statements – "be it on the streets, online, in closed chat groups, or even in our schools." The Social Democrat emphasizes: "It's not about restricting freedom of expression, but about effectively protecting human dignity."

Incitement to hatred is directed against social cohesion, Wegge told this newspaper, and "in many cases, it prepares the ground for actual violence." Therefore, legal tightening is needed "to draw clear boundaries against hate and incitement – ​​including preventative measures." The law, as it applies not only to incitement to hatred, is also intended to deter acts. These are statements. It's a fine line.

Lawyers warn against restrictions on freedom of expression

The CDU/CSU and SPD see gaps in the legal system, a need to catch up. And the tightening of Section 130 is intended to remedy this. Meanwhile, some lawyers are complaining about increasing restrictions on free speech. In an interview with the Berliner Zeitung, criminal law professor Frauke Rostalski, a member of the German Ethics Council, mentioned the planned tightening of incitement to hatred alongside offenses such as "insulting politicians." Lawyer Elisa Hoven, a judge at the Saxon Constitutional Court, also warns of an infringement on freedom of expression in a post for the Verfassungsblog . Even the appearance of political censorship is dangerous in a democracy.

Hoven also writes about the coalition's plan to revoke the right to stand for election in cases of multiple convictions for incitement to hatred – which would prevent repeat offenders from being nominated as candidates. A change that could potentially affect AfD politicians. For example, Thuringian state chairman Björn Höcke has already been suspected of incitement to hatred on several occasions.

The lawyer urges restraint. "The offense of incitement to hatred is subject to a sensitive tension with freedom of expression, and the content being discussed is almost always political," Hoven writes. It is risky to attach far-reaching political consequences to a politically contested offense that also leaves "broad scope for interpretation."

The question remains as to how the CDU/CSU and SPD intend to tighten the law. Which statements could be considered incitement to hatred in the future? Paragraph 130 stipulates that a statement must be capable of disturbing the public peace. Currently, it is a criminal offense to incite hatred or acts of violence against a "national, racial, religious, or ethnic group, against sections of the population, or against an individual because of their membership in a designated group or section of the population." Attacks on human dignity are also mentioned, such as "insulting, maliciously disparaging, or slandering someone because of their membership in a designated group or section of the population." This is a rather general formulation that can be interpreted in different ways.

"Specifically, we are committed to ensuring that the spread of anti-Semitic conspiracy theories, which in practice are often difficult to classify under existing criminal offenses, is more clearly defined in the future," says CSU politician Hierl. "Even the deliberate denial, trivialization, or condoning of war crimes and genocides outside the Holocaust—for example, with regard to the genocide in Rwanda or against the Yazidis—should be punishable in the future." However, if the CDU/CSU has its way, this would not be enough. Likewise, "criminal content directed against groups with certain ideologies should fall more clearly within the scope of application" of Section 130. This refers, for example, to ethnic or religious minorities.

SPD MP Carmen Wegge primarily wants to close "protection gaps" on digital platforms, such as social media platforms like X. "Fantasies of violence and annihilation against certain population groups must be punishable," Wegge says. "This also includes derogatory or dehumanizing statements – such as comparisons to vermin or diseases." Antisemitic hate speech should not go unpunished simply because it is directed against Jews abroad. The scope of the law's protection should be expanded.

"Even closed chat groups in which hate speech, right-wing extremist symbols, or violent fantasies are spread must finally be legally recorded – because hate is dangerous even behind closed doors," said Wegge. Until now, the offense has required a certain degree of publicity. "We also demand clear criminal consequences for the display of anti-constitutional symbols and anti-Semitic statements in schools if they are not made in a historical context," said the Social Democrat.