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?

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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.

NEXT: Threepeat for transatlantic privacy

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  1. Unsurprising, I guess, given that Europe doesn't have freedom of speech.

    1. "The dangerous power of censorship can be safly wielded by democracy!"

      But isn't democracy the vote, majority rule?

      "Yeah"

      Isn't swaying the masses the specialty of dictators and demagogues?

      "Shut up!"

    2. There is a symmetry between the prohibition of the word, war, in Russia, subject to 15 years in prison, and the prohibition of the Z symbol, subject to 3 years in prison in democratic German provinces. No doubt, lawyer drafting practice around the world is horrible.

      I understand from a Ukrainian analysis that 80% of the Russian population supports the war. Many believe that Ukrainians have sent specially bred birds to kill Russian people.

      Before getting all huffy and superior to anyone, the conclusion is that we are all the same. We base our policies on feelings and will be wrong.

      The remedy seems obvious. No law should be enacted before testing in a small jurisdiction. It should be proven safe and effective before enactment in a larger jurisdiction. Critical thinking and formal logic must be supreme to any lawyer utterance. Why? Because law school turns intelligent, ethical young people into the stupidest people in the whole country. See Putin, a lawyer, as an illustration of the extreme catastrophe to a nation of policy making by a lawyer. See Saddam, a lawyer, as another. See Biden, a lawyer, as another. Until that education changes around the world, no lawyer should be allowed on any bench, legislative seat, or responsible policy position in the executive. They are just too toxic. This rule needs no more empirical validation because of the self evident toxicity before our eyes. It cannot be ignored any longer.

      Xi Ping is an engineer who spent time in Iowa, as I did. His daughter is a Harvard indoctrinated grad. She should get no policy responsibility. He is kicking American butt.

      1. Again, before getting huffy and superior, in the US, make a joke at work, and get ruined permanently. Disagree with ever changing CDC orthodoxy, lose the medical license. Give an unapproved opinion, end the Hollywood career. All PC is case. So lawyer toxicity is universal, and lawmaking is mostly quackery and garbage.

        In the USSR, dissenters were committed to mental hospitals and treated for delusions. Here, dissenters are called insane, and people want to commit them to locked mental hospitals. Do not start huffing in moral superiority before looking in the mirror. I myself have advocated the mass arrest of the lawyer hierarchy, which could be wrong. That idea should be tested in a small jurisdiction.

  2. Wouldn't they have to prove that what the defendant incited was in fact aggression? Or in other words, wouldn't they have to prove that Russia was waging an aggressive war?

    Does the court take "judicial notice" of all the news articles calling Russia the aggressor? Does it hear from journalists from the front, expert witnesses, defectors, etc?

    Does the defendant get to put in evidence of NATO expansion and other defenses of the Russian war policy? Does he get to subpoena documents, emails, etc., from various foreign offices to find material exonerating Russia?

    I'm assuming here that Russia actually is the aggressor, I'm curious, though, how one goes about judicially proving it.

    1. Are you arguing that the state must prove that the display of the letter Z is the cause of Russian aggression?

      To me, the state would have to prove that there was some form of aggression within the jurisdiction of the court that was directly caused by the display of the letter Z.

      No need to discuss the merits of the law itself. I find it detestable.

      1. I'm not a fan, either, and I'm putting forward one of many possible arguments against this law.

        If the question of the justness of a war comes up in a criminal trial, if unjustness is an element of the crime, then what rules of evidence do you use?

  3. As the cartoons say ....

    Zzzzzzzz.....

    1. Can they still show World War Z?

      1. Only after answering Y.

      2. Just call it World War "the letter that can't be named" and you'll be OK

  4. By the way, Article 20(1) of the International Covenant on Civil and Political Rights says: "Any propaganda for war shall be prohibited by law."

    Germany ratified, and did so without any First Amendment reservations like the U. S. has:

    https://indicators.ohchr.org/

    So it would be a violation of human rights if Germany *didn't* censor war propaganda!

  5. 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?

    Germany stopped committing genocide, but it never stopped being a collectivist, totalitarian culture. And collectivist, totalitarian cultures vote for collectivist, totalitarian laws and government. Furthermore, unlike the US Constitution, the German founding documents don't place meaningful limits on government powers.

    I don't understand why people keep thinking that democracies protect rights like free speech. In fact, few democracies ever have.

    1. Totalitarian collectivist seems a bit much. Germans' freedom is not more than marginally different than the rest of Europe, and even the US.

      1. Really? = Germans' freedom is not more than marginally different than the rest of Europe, and even the US.

        Better check that assumption, Sarcastr0. Example: Try homeschooling your child in Germany.

        1. I'm not saying we're not more free over here, I'm saying not being able to homeschool does not mean Germany is a 'a collectivist, totalitarian culture.'

          We have examples of what that looks like, and it's not Germany.

          1. "All our children will spend decades in state-run education centers regardless of the wishes of their parents" sounds both totalitarian and collectivist to me.

            1. That's more because you have a pretty nutty take on public education, more than Germans living under a totalitarian collectivist regime.

              Again, we know what such a regime looks like, and Germany is not it.

              There are some who like to burnish their ideological bona fides by calling everyone who doesn't agree with them tyrants and Hitlers, but those people are saying more about their own extremism than the actual world.

          2. Uh....you may want to keep checking those assumptions Sarcastr0. Do you have any idea of marginal tax rates in Germany? Land use restrictions? Labor laws? Eco-mandates?

            Your statement was....not quite on point, Sarcastr0. Germany has a much more statist society than America. That is just an objective fact.

            You might not like NOYB2's label, but it is very much on point.

            1. So it appears you agree with the thesis that Germany is a collectivist, totalitarian culture, with a collectivist, totalitarian government. That's not a comparative statement, that's a normative statement.

              So then what was the USSR? What is China?

              This lack of perspective flattens the world beyond utility.

        2. More libertarian, I should say. As a fan of operational freedom, I reserve judgement on 'more free.'

      2. Germans' freedom is not more than marginally different than the rest of Europe, and even the US.

        It that were true, that family that wanted to homeschool their kids wouldn't've had to come here. (If I remember right, the Obama administration sent them back.)

        1. You have a very anecdotal view of what it takes to become an unfree country.

          I could say the same about America's drug laws. Or taxes. But then I'd be using a definition of freedom that was so rigid no country counted as free.

          And Hobbes would cry.

    2. I don't understand why people keep thinking that democracies protect rights like free speech. In fact, few democracies ever have.

      NOYB2, perhaps it has something to do with this nation's democratic tradition, and its world-leading standard of protection for free speech.

      Indeed, some might argue that German democracy is what enables a standard of free speech which suits German history and present needs. Can you think of anything in the German past to suggest the American standard would be wiser there? If you can, are you German?

      1. Putin has been telling Russians for years that all that "democracy" and "freedom" jazz is for the Americans. We, Russians, are different! We don't need any of that jazz!

  6. Germany’s constitutional protections are generally worthless. They go something like this:

    Free speech is really important. No citizen shall be deprived of the right to speak freely, except by law.

      1. If you just look at it on paper, the USSR Constitution (the '36 version) looks pretty good to many people. It's far too communist for me, with all the economic stuff, but it does seem to guarantee many desirable rights.

        Of course, it wasn't worth the paper it was printed on before it was even printed, because Stalin was running things, but on paper...

    1. Yes, the German Basic Law acknowledges there are limits to free speech.
      The text of the US Constitution does not admit any such limits, but they exist anyway. Is that better?

      1. Germany's freedom of speech is guaranteed unless the government wants otherwise. This is the same as not having the right, because it does not protect you from the only threat to the right.

        These rights shall find their limits in the provisions of general laws, in provisions for the protection of young persons, and in the right to personal honour.

        Does that sound like firm protection for free speech?

        1. It sounds like honesty.

          But the real test isn't what the words say, it is how they are applied, as you point out elsewhere with respect to the Russian constitution. Here's a fragment of another one you might recognize, that promises rights with no carveouts:

          Citizens of the People’s Republic of China shall enjoy freedom of speech, the press, assembly, association, procession and demonstration.

          Now that sounds like firm protection for free speech!

  7. This is where allowing censorship eventually leads. The space for thinking for yourself and deciding what you believe for yourself becomes smaller and smaller.

    When it comes to restrictions on free speech, the slippery slope exists.

    1. Welker, is it your view that in Germany the space for thinking for yourself becomes steadily smaller? For instance, are proscribed topics there notably more inclusive now than they were 10 years ago? Are you conflating different similar instances with differences in kind?

  8. I used to say that only the United States understood free speech.

    Nowadays, I don't say that quite so much, and it's not that the rest of the world has gotten any better.

    1. Correct. Make a joke at work, get destroyed.

  9. Can you show the Costa-Garvas movie "Z" (which ends with a long list of things banned under the colonels' dictatorship in Greece, including the display of the letter Z)?

    1. I think the letter Z should be suspended from all use of any kind - including this article and the edict banning Z in the first place.

      1. Exactly! It should be like saying the name of Jehovah!

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

    So all we had to do was pass a criminal law to ban the display of the Viet Cong flag or the chanting of "Ho! Ho! Ho Chi Minh! NLF is gonna win!"? If only we knew it was so easy.

  11. Seems like entanglement of the war issue is a red herring. Isn't the basis of the ban something to do with German proscriptions of hate speech? Forget the Russians, and replace their example with a home-grown, "Z" campaign, featuring equivalent advocacy—Ukrainians are dead to rights and subject to mass murder at will—and under German law don't you come out in the same place?

    1. Prof. Volokh addresses your point in the last paragraph of his post.

  12. Z ? What about A, B, C . . . . ????? Oh, the humanity !!!! The billionaire globalists will set up cancel-culture committies to review each letter !!! (for font, appearance, gender, etc. etc. etc.) Control, control, control !!!

  13. One more reason not to forbid the Z is that such prohibitions are gleefully cited by Russia and others to justify their own (often even more drastic) speech restrictions: "See, in your vaunted West they do the same thing!"

  14. This is what happens when a nation accepts that the government has a right to censor speech.

  15. Le Monde reports that a resident of Kramatorsk, Ukraine has been accused of collaboration for sharing a Tik Tok video "nié l’agression armée de la Russie contre l’Ukraine et appelé publiquement à soutenir les décisions et les actions illégales" ("denying the armed aggression against Ukraine and publicly calling for support of illegal acts and decisions"). I have not seen an English language report yet.

    Obviously not the same legal context as in Germany, which is officially neutral. But likely exceeding what the US government could do if we were at war or its euphemism "authorization for use of military force". I haven't heard of anybody going to prison for saying 9/11 was an inside job, or saying we had it coming.

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