Black-Red against free speech: No one in the Bundestag defends freedom of expression anymore

Freedom of expression is in a difficult position in Germany. When in doubt, people in this country prefer to justify infringements on free speech or propose new ones when loopholes in the criminal code appear.

This appears to be a cross-party consensus. Those on the left of center oppose the deliberately vague, apolitical phrase "hate and incitement," while those on the right of center focus on solving social problems (such as rampant anti-Semitism) by restricting freedom of expression. What the far left and far right have to say on this will be ignored here.

The German concept of freedom of expression—with its historically connoted limitations due to the offenses of incitement to hatred and insult —should also be applied as absolutely as possible. Freedom of expression should be interpreted very broadly, because any interference with it encourages abuse.

Freedom of expression: Courts should decide on truth and morality

At some point, this knowledge seems to have been lost. Political battles are happily shifted into the legal sphere. What is true and correct is to be determined by a court through criminal law. The coronavirus pandemic clearly demonstrated the moralistic fury with which dissenters can be attacked as long as a state of emergency is declared.

To date, the realization that a fragile belief in the right cause does not justify overriding the free speech of one's political opponents has only tentatively taken root. The debates of the Covid years—from mandatory vaccination to school closures—have demonstrated how quickly the right cause can turn out to be misguided.

And now the new government, made up of Social Democrats and Christian Democrats, is picking up exactly where the traffic light coalition left off. In its coalition agreement, it has not only agreed to expand media oversight to combat fake news—something not entirely unjustifiably referred to as a " ban on lies "—but also intends to significantly expand the incitement to hatred clause.

Research by this newspaper shows that the proposal aims to criminalize speech acts that are not currently prohibited. Susanne Hierl, legal policy spokesperson for the CDU/CSU parliamentary group, speaks vaguely of "reducing gray areas." Her SPD colleague Carmen Wegge goes even further and wants the law to apply to statements in closed chat groups as well.

History policy cannot be pacified by paragraphs

The more concretely the two express themselves, the more sinister it becomes. Hierl wants to criminalize "the deliberate denial, trivialization, or condoning of war crimes and genocides outside of the Holocaust." The fact that incitement to hatred is punishable in Germany is a concrete consequence of the National Socialists' project of extermination. Other countries with genocidal histories have similar laws.

However, criminalizing the general denial of all war crimes is not only a frontal attack on freedom of expression, it is also completely impractical. Not only is it in the nature of war crimes to be covered up and their classification to be disputed, but battlefields of historical politics cannot be pacified by overzealous paragraphs in the penal code. The current heated debate surrounding Israel's alleged genocide against the Palestinians in the Gaza Strip also demonstrates how easily the concept of genocide can be instrumentalized in the present.

SPD politician Wegge's proposal to consider "dehumanizing statements" such as comparisons to vermin or diseases as incitement to hatred is simply bizarre. What kind of comparison to an illness constitutes incitement to hatred then—even a cold? As long as the CDU/CSU/SPD amendment hasn't been implemented yet, it should be written: The CDU/CSU/SPD coalition is reminding people of tonsillitis . Although it's easier to get rid of that. Ouch.

Perhaps the two former mainstream parties aren't quite so serious about their desire to interfere with freedom of expression. The bitter realization remains that there is no significant force in the Bundestag that credibly opposes attacks on freedom of expression – regardless of which political camp they come from.