Strafgesetzbuch section 86a
The German
The law prohibits the distribution or public use of symbols of unconstitutional groups—in particular, flags, insignia, uniforms, slogans and forms of greeting.[1]
Text
The relevant excerpt of the German criminal code reads:[1][2][3]
§ 86 StGB Dissemination of Means of Propaganda of Unconstitutional Organizations
- Whoever domestically disseminates or produces, stocks, imports or exports or makes publicly accessible through data storage media for dissemination domestically or abroad, means of propaganda:
shall be punished with imprisonment for not more than three years or a fine.
- of a party which has been declared to be unconstitutional by the
Federal Constitutional Courtor a party or organization, as to which it has been determined, no longer subject to appeal, that it is a substitute organization of such a party;- of an organization, which has been banned, no longer subject to appeal, because it is directed against the constitutional order or against the idea of international understanding, or as to which it has been determined, no longer subject to appeal, that it is a substitute organization of such a banned organization;
- of a government, organization or institution outside of the territorial area of application of this law which is active in pursuing the objectives of one of the parties or organizations indicated in numbers 1 and 2; or
- means of propaganda, the contents of which are intended to further the aims of a former National Socialist organization,
- ...
- Subsection (1) shall not be applicable if the means of propaganda or the act serves to further civil enlightenment, to avert unconstitutional aims, to promote art or science, research or teaching, reporting about current historical events or similar purposes.
- If guilt is slight, the court may refrain from imposition of punishment pursuant to this provision.
§ 86a StGB Use of Symbols of Unconstitutional Organizations
- Whoever:
shall be punished with imprisonment for not more than three years or a fine.
- domestically distributes or publicly uses, in a meeting or in writings (§ 11 subsection (3)) disseminated by him, symbols of one of the parties or organizations indicated in § 86 subsection (1), nos. 1, 2 and 4; or
- produces, stocks, imports or exports objects which depict or contain such symbols for distribution or use domestically or abroad, in the manner indicated in number 1,
- Symbols, within the meaning of subsection (1), shall be, in particular, flags, insignia, uniforms, slogans and forms of greeting. Symbols which are so similar as to be mistaken for those named in sentence 1 shall be deemed to be equivalent thereto.
- The exceptions from §86 subsection (3) and (4) apply accordingly.
Symbols affected
The text of the law does not name the individual symbols to be outlawed, and there is no official exhaustive list. A symbol may be a flag, emblem, uniform, or a motto or greeting formula. The prohibition is not tied to the symbol itself but to its use in a context suggestive of association with outlawed organizations. Thus, the
Because of the law, German Neo-Nazis took to displaying modified symbols similar but not identical with those outlawed. In 1994, such symbols were declared equivalent to the ones they imitate (Verbrechensbekämpfungsgesetz § 2). As a result of the ban on Nazi symbols, German Neo-Nazis have used older symbols such as
Affected by the law according to
- Sozialistische Reichspartei (1952)[6]
- Kommunistische Partei Deutschlands (1956)[7]
- Freie Deutsche Jugend (West Germany)
- Volkssozialistische Bewegung Deutschlands/Partei der Arbeit (1982)
- Aktionsfront Nationaler Sozialisten/Nationale Aktivisten(1983)
- Alternative für Deutschland)
- Nationalistische Front(1992)
- Wiking-Jugend (1994)
- Freiheitliche Deutsche Arbeiterpartei(1995)
- Blood and Honour, Germany chapter (2000)
Symbols known to fall under the law are:
- the swastika as a symbol of the Nazi Party, prohibited in all variants, including mirrored, inverted etc. (exceptions are only applied to swastikas used as religious symbols in Hindu, Buddhist, and Jain temples)
- a stylized Celtic cross, prohibited as a symbol of the VSBD/PdA and in the variant used by the White Power movement. The legal status of the symbol used in non-political contexts is uncertain, but non-political use is not acted upon in practice.[8]
- the Waffen SSdivisions
- the SS
- the Sturmabteilung emblem
- the legal status of the Hauptfeldwebelwith it also being used by the ranks succeeding it.
- the Junge Front
- Gauwinkel badges (2002)[10]
- Reichskriegsflagge: prohibited in the Third Reich version including a swastika.
- the "Heil Hitler" greeting (1970)[11]
- the "Sieg Heil" greeting (1990)[12]
- Hitler salute.[13]
- The Reichsadler with the Nazi swastika.
- the "Hitler-Jugend) (1991)[14]
- the hammer and sickle, red star and red flag when used as emblems of the Communist Party of Germany
- The
- the
- Since the 2022 invasion of Ukraine by Russia, several states including Berlin, Lower Saxony and Bavaria are looking to put the military Z symbol under the law.[21][22]
Illustration of the emblems mentioned in the list above:
-
Nazi swastika
-
Party Eagle (Parteiadler) of the Nazi Party.
-
Solar cross
-
White Powermovements
-
Broken solar cross of the Thule Society and the German Faith Movement
-
Ku Klux Klan (1915–current) "fiery cross" from the 1905 novel The Clansman: A Historical Romance of the Ku Klux Klan, and its 1915 film adaptation The Birth of a Nation[23][24]
-
Odal rune
-
Sturmabteilung emblem
-
Schutzstaffel sig runes
-
Flag of the Nazi Party
-
Reichskriegsflagge 1938–1945 (national war flag)
-
Reichsdienstflagge 1935–1945 (Reich service flag)
-
Emblem of the Communist Party of Germany (redrawn after a historical lapel pin)
-
Reverse side of the Red flag of the Communist Party of Germany
-
Islamic State version of the jihadist black flag
-
Flag of the KurdishPeople's Protection Units
Anti-fascist symbols
In 2005, a controversy was stirred about the question whether the paragraph should be taken to apply to the display of crossed-out swastikas as a symbol of anti-fascism.[25] In late 2005 police raided the offices of the punk rock label and mail order store "Nix Gut Records" and confiscated merchandise depicting crossed-out swastikas and fists smashing swastikas. In 2006 the Stade police department started an inquiry against anti-fascist youths using a placard depicting a person dumping a swastika into a trashcan. The placard was displayed in opposition to the campaign of right-wing nationalist parties for local elections.[26]
On Friday 17 March 2006, a member of the
Application to forms of media
Section 86a includes a social adequacy clause that allows the use of the symbols that fall within it for the purposes of "art or science, research or teaching". This generally allows these symbols to be used in literature, television shows (as with the 1968 Star Trek episode, "Patterns of Force", itself allowed after 1995),[30] films, and other works of art without censoring or modification and stay within the allowance for the clause. For example, German cinemas were allowed to screen Raiders of the Lost Ark and Inglourious Basterds, films which feature frequent displays of Nazi symbols, without censorship.
Up until 2018, video games were not included in the social adequacy clause. A High District Frankfurt Court ruling in 1998 over the video game Wolfenstein 3D determined that because video games do attract young players, "this could lead to them growing up with these symbols and insignias and thereby becoming used to them, which again could make them more vulnerable for ideological manipulation by national socialist ideas".[31] Since this ruling, the Unterhaltungssoftware Selbstkontrolle (USK), the German content ratings board, would refuse to rate any game that includes symbols under Section 86a, effectively banning them from retail sales within Germany. This led to software developers and publishers to either avoid publication in Germany, or create alternative, non-offending symbols to replace them, such as in Wolfenstein II: The New Colossus, where the developer had to replace the game's representation of Adolf Hitler with a version without the moustache and named "Chancellor Heiler".[31]
In August 2018, the German government reversed this ruling as a result of a ruling from April 2018. The web-based game Bundesfighter II Turbo was released prior to the September 2017 elections, which included parodies of the candidates fighting each other; this included Alexander Gauland, who had a special move that involved Swastika imagery. When this was noticed by public authorities, they began prosecution of the game in December 2017, submitting it to the Public Prosecutor General's office for review based on the Wolfenstein 3D decision. The Attorney General declined to consider the game illegal under Section 86a, stating that the 1998 ruling was outdated; since then, USK had adopted age ratings for video games, and that there was no reason not to consider video games as art within the social adequacy clause.[32] As a result, the Federal Department for Media Harmful to Young Persons adapted the Attorney General's ruling to be applicable for all video games within Germany, and subsequently the USK announced this change in August 2018; USK will still review all games to judge whether the use of imagery under Section 86a remains within the social adequacy clause and deny ratings to those that fail to meet this allowance.[31] In August 2020, Through the Darkest of Times, in which players follow an anti-Nazi resistance group, became the first game permitted by USK to depict swastikas.[33]
See also
- Censorship in Germany
- Bans on communist symbols
- Bans on fascist symbols
- List of symbols designated by the Anti-Defamation League as hate symbols in the United States
- Memory law
- Modern display of the Confederate flag
- Thor Steinar
- Verbotsgesetz 1947 in Austria
References
- ^ a b "Section 86a Use of Symbols of Unconstitutional Organizations". Criminal Code (Strafgesetzbuch, StGB). German Law Archive.
- ^ Andreas Stegbauer; German Law Journal. "The Ban of Right-Wing Extremist Symbols According to Section 86a of the German Criminal Code" (PDF). germanlawjournal.com. Archived from the original (PDF) on 1 August 2014. Retrieved 1 August 2013.
- ^ World Bank. "GERMAN CRIMINAL CODE Criminal Code in the version promulgated on 13 November 1998, Federal Law Gazette [Bundesgesetzblatt] I p. 3322, last amended byArticle 3 of the Law of 2 October 2009, Federal Law Gazette I p. 3214" (PDF). worldbank.org.
- ^ "Imperial German Flag".
- ^ Speiser, Matthew (24 June 2015). "Here's why the Confederate flag is flown outside the US". Business Insider. Retrieved 3 March 2024.
- ^ Urteil des Bundesverfassungsgerichts vom 23. Oktober 1952, Aktenzeichen 1 BvB 1/51; Fundstelle: BVerfGE 2, 1 Archived 19 January 2003 at the Wayback Machine
- ^ Urteil des Bundesverfassungsgerichts vom 17. August 1956, Aktenzeichen 1 BvB 2/51; Fundstelle: BVerfGE 5, 85 Archived 12 February 2007 at the Wayback Machine
- Der Bundesgerichtshof. 14 November 2008.
- doi:10.37974/ALF.103.
In the United States one particularly virulent form of expression is associated with hatred and prejudice – the burning of a cross. Originally a traditional Scottish custom of signalling, following the American Civil War cross burning was adopted by guerrilla groups such as the Ku Klux Klan (Klan) as a symbol of racial supremacy and as a means of terrorising the newly freed slaves. The burning cross was glorified in the wicked movie The Birth of a Nation (1915) that depicted the Klan as heroes and saviors. Cross burnings were common at Klan rallies throughout the 1920s at a time when lynchings were commonplace and the Klan was at the height of its power. The burning cross was used as a warning and a threat to any person seeking to improve the political or economic condition of the black race.
- ^ "Gauwinkel". Die Tageszeitung: Taz (in German). taz.de. 2 December 2005. p. 13. Archived from the original on 13 August 2011.
- ^ Entscheidung des Oberlandesgerichts Celle, Neue Juristische Wochenschrift 1970, 2257
- ^ Entscheidung des Oberlandesgerichts Düsseldorf vom 6. September 1990, Monatsschrift für Deutsches Recht (MDR) 1991, 174
- ^ Entscheidung des Bundesgerichtshofes, Aktenzeichen 3 StR 280/76, BGHSt 27,1
- ^ Entscheidung des Oberlandesgerichts Celle, NJW 1991, 1498
- ^ Eddy, Melissa (12 September 2014). "Germany Bans Support for ISIS". The New York Times. Retrieved 19 November 2014.
Germany on Friday [September 12, 2014] announced a ban on activities that support the Islamic State in Iraq and Syria, including any displays of its black flag, as part of an effort to suppress the extremist group's propaganda and recruitment work among Germans.
- ^ "Germany 2014 human rights report – US Department of State" (PDF). state.gov. United States Department of State. 2014. p. 11. Retrieved 11 September 2018.
On September 12 (2014), the Federal Interior Ministry banned any activities of the Islamic State of Iraq and the Levant (ISIL), including recruitment, fundraising, and the use of the group's symbols under the name "Islamic State" (German: Islamischer Staat), such as the black flag bearing ISIL's name.
- ^ "German police raid leftist for posting Kurdish YPG flag". DW.COM. 19 August 2017.
- ^ "German lawmaker sparks criticism after displaying banned YPG flag in parliament". DailySabah. 21 November 2017.
- ^ Gude, Hubert (10 March 2017). "De Maizière verbietet Öcalan-Porträts" [De Maizière bans portraits of Öcalan]. Spiegel Online (in German). Hamburg. Retrieved 4 February 2018.
- ^ Yücel, Deniz (24 February 2016). "Gute Kurden, böse Kurden. Wer ist Terrorist?" [Good Kurds, bad Kurds. Who is terrorist?]. Welt (in German). Berlin. Retrieved 4 February 2018.
- ^ tagesschau.de. "Ukraine-Krieg: Zeigen des "Z"-Symbols kann strafbar sein". tagesschau.de (in German). Retrieved 28 March 2022.
- ^ "Germany to prosecute use of 'Z' symbol to support Russia's war". POLITICO. 28 March 2022. Retrieved 29 March 2022.
- ^ Dixon, Thomas, 1864–1946. Arthur I. Keller, illustr. The clansman; an historical romance of the Ku Klux Klan New York Doubleday, pp. 324–327
- ^ Cecil Adams (18 June 1993). "Why does the Ku Klux Klan burn crosses?". The Straight Dope. Retrieved 24 December 2009.
- ^ "Stuttgart Seeks to Ban Anti-Fascist Symbols". Journal Chrétien. 4 April 2006. Archived from the original on 22 July 2012. Retrieved 21 February 2012.
- ^ "Plakate sind Thema im Landtag" (in German). Tageblatt Online. 23 September 2006. Archived from the original on 13 January 2009.
- ^ "Bundesgerichtshof, decision (Urteil) of the 15 March 2007, file reference: 3 StR 486/06" (PDF).
- ^ "Durchgestrichenes Hakenkreuz kein verbotenes Kennzeichen" (in German). Der Bundesgerichtshof. 15 March 2007.
- ^ "Bundesgerichtshof: Anti-Nazi-Symbole sind nicht strafbar" (in German). Der Spiegel. 15 March 2007.
- ^ "5 original Star Trek episodes that were banned overseas".
- ^ a b c Orland, Kyle (10 August 2018). "Germany says games with Nazi symbols can get 'artistic' exception to ban". Ars Technica. Retrieved 10 August 2018.
- ^ Schwiddessen, Sebastian (8 May 2018). "German Attorney General: Video game with Swastika does not violate the law; constitutes art". Lexology. Retrieved 26 August 2019.
- ^
- Plunkett, Luke (20 August 2018). "Through the Darkest of Times, A German Game That's Allowed To Use Swastikas". Kotaku. Retrieved 5 October 2022.
- Campbell, Colin (12 June 2019). "Through the Darkest of Times is a game about Nazis, but you won't get to shoot them". Polygon. Retrieved 26 July 2022.