The Volokh Conspiracy

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Free Speech

Crime to Speak in Favor of One Side in a War—in Which Your Country Isn't Even Fighting?


NPR (Rachel Treisman) reports:

Two German states have outlawed public displays of the letter "Z," which has become synonymous with support for Russia's war in Ukraine.

Authorities in Bavaria and Lower Saxony said over the weekend that anyone who displays the symbol at public demonstrations or paints it on cars or buildings could face a fine or up to three years in jail, the English-language site The Local reports. And an Interior Ministry spokesperson told reporters on Monday that people throughout Germany who display the letter to endorse Russia's aggression could be liable to prosecution.

"The Russian war of aggression on the Ukraine is a criminal act, and whoever publicly approves of this war of aggression can also make himself liable to prosecution," the spokesperson said at a news conference, according to Reuters….

Chapter 140 of Germany's criminal code recognizes "incitement to crime of aggression" as an offense, according to Ukrainian state news agency Ukrinform….

In announcing the decision, Bavarian Justice Minister Georg Eisenreich said that freedom of thought "ends where criminal law begins."

"The Bavarian Public Prosecutor's Office is taking consistent action against persons, who publicly approve the war of aggression that violates international law," he said, according to Ukrinform. "Russian President [Vladimir] Putin has launched a criminal war of aggression that is inflicting terrible suffering on the Ukrainian people, so the Bavarian judicial system is watching closely."

How can a democracy, which presumably has to decide through democratic means what to do about the Russia-Ukraine war, criminalize support for one or the other side? I personally think Russia's actions are unjustified; doubtless many Germans think the same, and perhaps even most do. But it seems to me that those who support Russia should have every right to express their views as well.

Indeed, I think that people should be free even to speak in favor of a nation's actual enemies in war time. Indeed, one argument for stopping a war is precisely the claim that our enemies are in the right and we're the ones in the wrong.

But here there's not even the excuse that "When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right" (to quote a passage from Schenck v. U.S. (1919) that American First Amendment law has likely since rejected). Germany is not at war. Its soldiers are not fighting. The question of which side Germany should be on (right now, through nonmilitary actions, such as sanctions) has to be understood, in a democracy, as open to democratic debate.

I appreciate the argument that, given German history, Nazi advocacy can be properly restricted (or, given the history of other countries, Communist advocacy can be properly restricted). I don't agree with it, in part because of the risk that suppressing one kind of speech will lead to suppression of other kinds. But in any event, it looks like—assuming the NPR coverage is correct—this very risk may have materialized here.