The ghosts of Germany’s past

“I was never despondent before, I never despaired of my fatherland; but now that I have seen its saviours, all hope has left me”.
⎯ Heinrich Heine (German poet, 1797 – 1856)

So, that’s where we’re at now. Forty black-clad and masked officers storm the apartment of a media company’s editor-in-chief at 6 AM. He is dragged out of bed and now stands at the door, disheveled and in a bathrobe, being photographed by media representatives who, curiously, are already present to ensure this image quickly makes it to the front pages. Conveniently, the long, elaborate articles on this are already written — some journalists were again informed in advance, just like during the “Reichsbürger” raid in November 2003 [when police raided the properties of various individuals allegedly involved in a far-right plot to overthrow the government].

Privacy rights, what was that again? After all, it is a “disgusting rag”, as almost all commentators, even those who criticise the action and question its constitutionality, emphasise. But, and this is a big but: it is not about whether one agrees with the opinions expressed in Compact’s media products, nor is it about whether one finds the views expressed there “repulsive” or “disgusting”. That does not matter. Freedom of the press and freedom of opinion are simply “constitutive” for democracy as our constitutional court has declared again and again.

Freedom of the press and freedom of opinion are very precious principles. Among the most important we have in public life. And now, such an action. Bypassing the jurisdiction of the federal state (where press law resides; for good reason, based on the experiences of the Nazi era, the press was specifically not to fall under federal jurisdiction to minimise the risk of political instrumentalisation by the central state against the media and opposition opinions), bypassing press law altogether, bypassing the legal route through criminal complaints and procedures. No, in this case, association law was used as the basis, although associations do not enjoy the same level of constitutional protection as the media and journalists, for very good reasons. It is all outrageous, as many legal experts have already pointed out.

In his response at the Federal Press Conference on July 17, 2024, to a query from Florian Warweg of German independent news magazine Nachdenkseiten, the spokesperson for the Interior Ministry, Mr. Kall, stated that this was not the first time a publication had been banned under association law, citing the case of the ban on left-wing online platform and news blog Indymedia in 2017. Conveniently, he omitted that this was linked to criminal charges and a parallel criminal investigation for the suspicion of forming a criminal organisation under Section 129 of the German Criminal Code (StGB). The Interior Ministry justified the ban at the time by stating that the website publicly called for violent crimes against police officers and political opponents as well as sabotage actions against state and private infrastructure facilities. This is clearly not the case here, as the owners and editors of Compact, according to their own statements, and I have not been able to find anything to the contrary, have not yet received any criminal convictions for any of their statements or articles in the last 14 years of its existence, and no current criminal charges have been brought.

Furthermore, Mr. Kall confidently explained that the plaintiffs’ complaint against the ban was dismissed by the Federal Administrative Court, meaning the Interior Ministry’s actions were upheld at the time. Here again, he omitted that the dismissal was based on an almost perfidious argument, namely that the plaintiffs, as natural persons, had no right to sue since the prohibition only concerned the association and not them personally. Therefore, Article 9, Paragraph 2 of the Basic Law (freedom of association) did not apply, as it affected only the association, not them personally. The ban was also not examined under Article 5, Paragraph 1 of the Basic Law (freedom of expression), as “the right to freedom of expression is not affected by the association ban”.

Let that sink in. The Federal Administrative Court denied legal protection and any review of the ban on the most important substantive points because the plaintiffs did not sue in the name of the association as its members. They did so because, if they had sued as association members, they might have faced criminal prosecution and possibly long prison sentences or at least feared such an outcome. The Federal Constitutional Court also rejected the complaint against the Federal Administrative Court’s ruling by order on February 1, 2023.  Neither the Federal Administrative Court nor the Federal Constitutional Court addressed the important substantive questions, particularly whether the state may circumvent the fundamental right of freedom of the press through association bans.

Why did Minister Nancy Faeser proceed in this way? She is a fully qualified legal scholar, she knows better. How could such a development occur? What does it look like from her perspective? The Federal Interior Minister herself stated in a post on X that she had banned the far-right magazine (interestingly, since she actually banned the limited company under association law and not the magazine itself; otherwise, press law would have been applicable, but let’s set that aside for now). She describes it as a “central mouthpiece of the far-right extremist scene”. This might even be true. It supposedly pursues the agenda of “networking right-wing extremists” and spreading “antisemitic conspiracy ideologies”.

The networking is certainly accurate, though “extremists” is arguable. However, which “antisemitic conspiracy ideologies” are being spread would need to be known in more detail to verify the truth and, more importantly, to determine the extent to which they are legally relevant. Even though warnings against “conspiracy theories” — later “conspiracy mythologies”, and now we apparently have advanced to “conspiracy ideologies” — have been increasingly emphasised over the years, portraying them as a major threat to our society and democracy, these terms are not legally or otherwise clearly defined and do not constitute criminal acts. Similarly, the oft-used terms “hate and incitement” and “hate speech” are not legally defined and therefore cannot be the basis for the restriction of fundamental rights as seen here. Of course, there is the offence of “incitement to hatred” under Section 130 of the German Criminal Code (StGB), but if that is what is meant, it should be explicitly stated.

German right-wing publicist and former editor-in-chief of German newspaper Bild, Julian Reichelt, posted two days later on X that one of the foundations for the ban might be an allegedly antisemitic article in Compact in which he himself was mentioned. I quote from the article as cited in the Federal Office for the Protection of the Constitution’s (the German equivalent of the FBI, tasked with internal security and counterintelligence) assessment:

"B’nai B’rith Lodge is supposed to be leading today in terms of its influence on politics and society, rather than the Freemasons. But everything that happens in secret comes to light one day. […]

In B’nai B’rith, leading media tycoons, bankers, politicians, diplomats, publishers, newspaper magnates — communists as well as multimillionaire capitalists, union leaders as well as employers — join hands across borders."

The analysis from the Federal Office for the Protection of the Constitution reads as follows:

"Here, the selective enumeration of elite and influential positions conveys the antisemitic narrative of a Jewish elite in the media, politics, and financial sector."

Well, I have my doubts whether this could substantiate any criminal offence, such as “incitement to hatred”, in court. Again, to clarify: I am not saying that the contents of Compact could not be antisemitic. However, since there has not yet been any conviction in this regard, I must assume that the contents are below the threshold of criminal liability. This means that through the association ban and the extremely repressive measures, the Interior Ministry is circumventing the legal system and our system of fundamental rights protection. Freedom of the press can only be restricted within very narrow boundaries due to criminal and other legal limits. But this does not concern our minister; rather, this fundamental and vital protection of press and opinion freedom for our democracy is simply being bypassed.

And then our Interior Minister further declares that Compact’s self-proclaimed goal is the “destruction of our free society”. Here, too, evidence is lacking, and I would be very interested in the details. I fear that one of the favourite rhetorical tricks of government representatives since the Covid-19 period, actually since the Pegida demonstrations (against Germany’s immigration policy) in 2015-2016, is being used again here. Although “trick” might not be the right word. It is a kind of “delusion”, as they genuinely see it that way.

The method works in a manner that is extremely authoritarian and inherently anti-democratic: politicians equate themselves and their personal and political values and beliefs with “democracy”, the “liberal-democratic basic order” (as we call it in Germany) and the “state”. They then interpret any criticism of themselves as criticism of “democracy”, the “liberal-democratic basic order” or the “state” (keyword “delegitimisation of the state”). It couldn’t be simpler. The practical result: they do not have to face the criticism. It is thereby delegitimised. In my view, this is the opposite of a democratic discourse.

Further, she says: “This magazine incites against Jews in an unspeakable manner, against people with a migration background, and against our parliamentary democracy”. The ban shows that action is also being taken against “intellectual arsonists” who foment a climate of hate. “Our message is clear: We will not allow the definition of who belongs to Germany to be based on ethnicity”, Faeser emphasised.

Well, I assume the Federal Office for the Protection of the Constitution has collected a lot of material in advance and that the search warrants, which form the basis of the action, were issued by a judge. Surely, when all emails, posts, chats, letters, diaries, and so forth, which are currently being eagerly searched through by the officers, are fully assessed, something might be found to support these accusations. All of this will eventually be reviewed by the Federal Administrative Court, later by the Federal Constitutional Court, and then by the European Court of Human Rights. And with a high probability, when Ms. Faeser and her government have long left office, it will be determined years later that the actions were unlawful and unconstitutional. But by then, it will be too late. And that might even be the calculation, along with the hope that something incriminating can be found during the comprehensive seizure that could justify this massive action retrospectively — if not legally, then at least in the eyes of the public. They know that facts are being created here. Whether lawfully or not, the magazine will be economically destroyed in the meantime. This is also called “lawfare” — waging war through legal means.

What we have here is definitely an escalation. On both sides. The state is becoming more authoritarian and repressive, and the resistance and criticism of the government are becoming more aggressive and filled with hate. Hate breeds hate. Repression strengthens resistance. And therefore, this development can only be resolved with mutual understanding and a massive de-escalation of rhetoric.

When I see the front page of the formerly left-wing taz newspaper with the headline "“Just keep your press shut!” on the table of a woman sitting next to me in the café where I am writing this, I realise that in German political discourse we have reached the level of a schoolyard quarrel or a relationship dispute where both sides have arrived at the phase of just shouting, “Shut up! Shut up! Shut up!”.

And yes, dear government, dear journalists, dear liberal bubble, to which I also belonged and still belong on many topics and values, you are just as much a part of this dynamic and development as the “right-wingers”. You also need to demilitarise rhetorically and relearn how to respond to differing opinions and (even harsh) criticism with respect, decency, courtesy and objectivity. We are in a spiral of escalation, both in foreign and domestic conflicts. And the solution is not more aggression, more anger, more hate, more repression, but exactly the opposite.

I feel helpless and deeply saddened watching this development, this spiral of hate and alienation. And the terrible part is how unnecessary it partly is. Because the opponents in this confrontation share many ideals. Minister Nancy Faeser and her employees and supporters do not want to act autocratically; they want to save democracy from its enemies. They fear a violent overthrow, the return of fascism, and a murderous regime where Jewish people or people from other countries or ethnicities in Germany are no longer safe or even killed. There is nothing wrong with that. I deeply share this sentiment.

But, and here is another big but, by the way they act and speak, they promote a development towards violence and damage to our democracy instead of calming the situation.

And many of those now labeled as “far-right” do not want to destroy democracy as a form of government or even the “liberal-democratic basic order” of the Federal Republic of Germany, but believe that this democracy is currently being endangered or destroyed by the politicians in power. One may or may not share this view, but it is a big difference whether citizens and journalists express concern for their country and criticise politicians or whether they want to abolish the “liberal-democratic basic order” or even democracy itself. And even if they wanted to do that, it would still be covered by our constitution. This does not require “loyalty to the constitution” from citizens, only from holders of state power. Our constitution only demands that citizens do not actively and violently work to abolish and destroy our democracy. And this does not include the presentation of arguments and expression of opinions in magazines, on websites or in videos (“intellectual arson”). Well, the courts will have to decide.

Perhaps the term “militant democracy” (Wehrhafte Demokratie) is the most problematic concept of late. Ms. Faeser and her employees, as well as supporters of her actions, genuinely believe they are defending “democracy” against its “enemies”. This is the narrative framework in which they operate. This places them in the tradition of the legal scholar and later National Socialist Carl Schmitt, who argued for the necessity of such defensiveness from his perspective at a certain time (Germany in the 1920s and early 1930s). He is also the source of the famous quote: “No freedom for the enemies of freedom”. Interestingly, the term “enemy of the constitution” (Verfassungsfeind), often used recently, also originates from him.

But even then, there were other voices. The most prominent counterposition was represented by the Austro-Hungarian Jewish jurist Hans Kelsen, one of the most important constitutional lawyers of the twentieth century. Perhaps it is time to remember his words:

"A democracy that tries to assert itself against the will of the majority, even with violence, has ceased to be a democracy […], that is, whoever is for democracy must not get entangled in the fatal contradiction of resorting to dictatorship to save democracy."

To clarify, I do not believe our democracy has ceased to be a democracy. It still is, and I am very glad about that. But step by step, the division is advancing and tearing our country apart, and the hate, anger and frustration of parts of the population are growing. I also do not believe that our democracy is seriously threatened by a magazine and the — perhaps absurd, perhaps inflammatory — ideas and statements of its editor-in-chief and his authors and interviewees. It is not that fragile.

I may be an idealist and naive, but I wish we would all stop falling into such extreme emotions and distortions and simply start talking to each other again, listening to each other, and understanding each other. I wish for the government to have much more capacity for self-criticism and reflection on its own failures, and for the “opposition” and also the “far right” to have much more calm, respect and verbal disarmament. As difficult as it may be.

I am sure we could resolve all the contested issues through conversation and debate.
That, to me, is democracy.

“Farewell, my German fatherland, land of mysteries and pain; may you become bright and happy”.
⎯ Heinrich Heine

This article first appeared in the German magazine Nachdenkseiten, and was later republished by Thomas Fazi.