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Slamming Germany’s online speech shows the danger of destroying the First Amendment

Americans concerned about online “hate speech” and “disinformation” tend to resent the First Amendment’s limits on government intervention against objectionable content. But German authorities suffer no such restrictions, and the fallout should give pause to critics who welcome the idea that free speech is spreading too widely in the United States. As a New York Times A story published today shows that Germany’s ongoing crackdown on “hate speech, insults and misinformation” has predictably subjected political dissidents to police investigation and criminal sanctions for expressing their views in ways that violate existing powers.

The article begins by describing an incident related to an apocryphal quote by Green Party politician Margarete Bause. “The fact that someone rapes, robs or is a serious criminal is not grounds for deportation,” said Bause.

After the unnamed 51-year-old man shared that “fake remark” on Facebook, police visited his home, which they searched for half an hour and seized a laptop and tablet as evidence. He now faces a fine of about $1,400. Prosecutors said that even if he did not understand the comment, “the defendant bears the risk of spreading a false quote without verifying it.”

That punishment, Bause says Times, was “a warning shot that they can’t just accuse and hurt people with impunity.” Prosecutor Svenja Meininghaus, who participated in the case, agrees. “There has to be a line that can’t be crossed,” he says. “There must be consequences.”

The raid on the Facebook user’s home was one of about 100 on the same day last March, “part of a coordinated nationwide crackdown that continues to this day.” As police and prosecutors see it, they are blocking potentially deadly speech. Their crusade was inspired in part by the June 2019 neo-Nazi assassination of local politician Walter Lübcke, who “became a regular target of online violence after a 2015 video of him went viral in far-right circles”. In that video, Lübcke “suggested to the local audience that anyone who did not support accepting refugees could leave Germany themselves.”

Violence of any kind, let alone murder, is apparently an intolerable response to speech. But the German government has gone the extra mile to deem speech that incites violence intolerable. Because criminal laws are ultimately enforced by the gun, the government has thereby allowed violence in response to speech—the very evil it is supposedly fighting.

In the United States, concerns about violence can justify restrictions on speech only in narrowly defined circumstances, such as “genuine threats” and intentional incitement to imminent lawlessness. Another, possibly broader exception for “fighting words”, originally applied to “words which by their mere utterance cause injury” and “speech which incites an immediate breach of the peace”. After promulgating that doctrine in 1942, the Supreme Court repeatedly narrowed it to the point that many critics believe it is no longer a viable basis for upholding a criminal conviction.

In Germany, speech protections are significantly weaker. The government has long treated Holocaust denial and the display of Nazi images as crimes, and bans “incitement to hatred” more generally. It is also an offense to insult someone in public or engage in “harmful gossip”.

The leeway given by such laws was vividly illustrated last year by a Twitter user insulting Andy Grote, a Hamburg official who had violated pandemic-inspired social distancing rules he was accused of enforcing by “hosting a little election party in a downtown bar.” After Grote tweeted the critic responded to the need for responsible behavior to prevent a return to closures: “du bist so 1 Pimmel“-“You’re such an asshole.”

Three months later, that pithy protest prompted an early morning police raid, which in turn sparked the backlash that became known as Pimmelgate. “Activists printed stickers of the Twitter note and stuck them around Hamburg, forcing the police to clean them up”, Times notes. “The activists then painted the mural with the phrase and forced the police to paint over it more than once.”

The case “raised concerns that illegal speech was too vaguely defined and gave local prosecutors and police too much discretion over enforcement.” As if to prove this, the police later raided the home of Alexander Mai, an Augsburg climate activist who got into a Facebook dispute with “local far-right politician Andreas Jurca”. Mai rikos: She responded to Jurca’s post “criticizing Muslims” by posting a link to a photo “du bist so 1 Pimmel“mural painting.

Mai suspects that “the raid was politically motivated by his climate activism”. However well-founded the suspicions, Germany’s sweeping restrictions on speech invite abuse by any police or prosecutor with a political or personal grudge. And contrary to what progressives who attack “hate speech” and “misinformation” might expect, the victims aren’t necessarily misguided people who promote backward ideas.

In addition to cracking down on messages that incite violence or hate, German authorities claim to promote free speech by making online forums friendlier. Josephine Ballon, legal director of Berlin-based HateAid, which “offers legal aid to victims of online violence,” thinks that makes sense. Because of trolling and ad hominem attacks, he tells Times“people withdraw more and more from the discussion and do not dare to express their political opinion.”

But what happens when the government investigates and punishes people for comments it deems offensive, hateful, or distorted? Unlike “online use”, these efforts are backed by a legally authorized force capable of having an even stronger chilling effect.

“You can’t prosecute everybody,” says a former Justice Department official Times, “but it will have a big impact if you show that prosecution is possible.” That’s exactly the problem.

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