Why Resurrecting Speech-Restricting Laws from the Past Should not be the Way Forward
ongoing effort to combat online hate speech, the German Minister of Justice recently
announced to examine
the re-introduction of section 88a of the German Penal Code (hereinafter StGB).
This law sanctioned the ‘anti-constitutional endorsement of crime’ and was only
in force during a brief period between 1976 and 1981. It was supposed to
counteract the spread of aggressive opinions and calls for violence. While
politicians today are struggling with the issue of harmful online speech, one
should refrain from re-introducing a law that was not only controversial back
then but also ineffective. Apart from that, resurrecting the law in today’s
digital world raises numerous questions.
restrictive and vague law
StGB, distributing, publicly exhibiting or creating, purchasing, delivering any
type of written document that would fulfill the provisions of sec. 126
StGB, that is, the ‘breach of the public peace by threatening to commit offenses’,
and that would be intended and suitable according to the circumstances to
promote this type of threat. Making this type of document publicly available was
punishable by up to three years of prison sentence, and the same applied to the
endorsement of anti-constitutional behavior in public or in a gathering. Hence,
endorsing someone else’s announcement to perhaps breaching the public peace
according to sec. 126 StGB was made a felony (acc. to sec. 12 StGB). Endorsement
was later defined as ‘an approval or affirmation of an action directed towards
future acts as welcome, at least as necessary or as unavoidable’. Back then, the
lawmakers’ goal was to restrict the propagation of violence ‘especially among
young people’ as a ‘means of solving political, social and individual conflicts’.
In 2018, the Bundestag’s research service analyzed
section 88a StGB and came to the conclusion that the law was not only possibly incompatible
with the standards for speech-restricting laws but also ineffective since there
was only one final judgment on its base.
was adopted in 1976 in a time where Germany was shaken by far-left groups such
as the Red Army Fraction and the Revolutionary Cells, a time also known as the
“German Autumn”. After a
series of violent events, that is, attacks, kidnapping, and assassinations, the
German Parliament decided to not only sanction incitements to commit crimes,
calls for violence, and other inciting offenses, but also the endorsement of the
threat of committing certain crimes. The point of my argument here is not to
compare the violent acts committed during the 1970s with today. Such comparison
would not lead anywhere since it is still difficult to measure the effects on
online hate speech on events of the analog world and because there are so far
no certainties regarding the negative effects of social platforms on the public
debate (Emmer 2019). In
addition to avoiding jumping to conclusions with regard to the comparability of
the issues addressed, one should not underestimate the boomerang effect of a
law restricting political opinions: according to hearings in Parliament in
1981, section 88a apparently damaged ‘the reputation of criminal law and of the
State’ more than it stopped the endorsement of anti-constitutional
from the past
a speech-restricting law with a scope of application that was already too broad
forty years ago would be another step along the lines of the German law against
the spread of unlawful content on social media platforms, the Network
Enforcement Act (hereinafter NetzDG). Not to say that the two laws are similar, they are
fundamentally different. However, we can learn from the mistakes made in 2017.
The NetzDG was passed in a legislative rush and rightly criticized by experts
like UN-Special Rapporteur David Kaye (among
others) for its potentially restrictive effects on freedom of expression. In
essence, the criticism is about the NetzDG delegating too much power over the
limits of free speech to social media platforms, and about creating incentives
to remove content when it might be punishable under German criminal law. So
far, the reports published by social media platforms do not contain any sign
for over-blocking due to the NetzDG but the law serves as a model for other
countries where freedom of expression and information might be less protected. In
light of this precedent, there should be an awareness about adopting laws that
have a speech-restricting effect, especially considering that section 88a StGB
was removed in 1981 because it was deemed ‘superfluous and harmful’, not
because it had reached its objectives.
Plenty of warning signs
Finally, there are too many constitutional pitfalls and unanswered questions. According to article 5 (2) Basic Law, freedom of expression and information can be restricted by general laws meeting the standards enshrined in the Basic Law and developed by the German Constitutional Court. Such laws need to be general, proportionate, and to comply with the interdependence doctrine (“Wechselwirkung”) with regards to speech-targeting purposes. Re-enacting section 88a would require to define what a ‘written document’, ‘public’ or ‘a gathering’ are in the digital sphere. It would also need to be specific about how to define the act of endorsing on social media: would it suffice to “like” a post or would a share/retweet be necessary? At times when sharing and accessing information is one of the main accomplishments of social media platforms (even if they are under attack for their content moderation policies, at least since Cambridge Analytica), one should refrain from limiting in such manner what can be shared. In terms of proportionality, a new section 88a would need to be ‘necessary’, hence to fill a statutory gap that is not already sufficiently covered by other sections. However, there is no such statutory gap when you look at the offenses listed in sec. 1 (3) NetzDG: there are already numerous laws restricting speech and punishing speakers who insult (sec. 185 StGB), who call for sedition (sec. 130 StGB), who spread propaganda information about anti-constitutional organisations (sec. 86 StGB), etc. Last but not least, it would require clarity about the actors involved: should social media platforms be in charge of detecting the anti-constitutional endorsement of offenses, strengthening their role as ‘custodians of the Internet’ (Gillespie 2018)? Should prosecutors be allowed to search social media platforms as if they were public spaces? Although the German legal system generally allows restricting speech (in comparison to the First Amendment), the lack of clarity and the abundance of questions in the present case should be perceived as a clear warning sign.
Heldt, Amélie: Anachronisms by Law: Why Resurrecting Speech-Restricting Laws from the Past Should not be the Way Forward, VerfBlog, 2019/12/10, https://verfassungsblog.de/anachronisms-by-law/, DOI: 10.17176/20191210-180826-0.
Amélie P. Heldt is a researcher and doctoral student at the Leibniz-Institut für Medienforschung | Hans-Bredow-Institut, Hamburg, and an associate researcher at the Alexander von Humboldt Institute for Internet and Society (HIIG), Berlin.