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ACAB is A-OK, but A-hole is a no-no?

Milan GagnonJuly 21, 2016

A regional court has declared that a politician's intelligence cannot be compared to that of a piece of toast. Free speech is a confusing concept in Germany, where speaking too freely might cost over 2,000 euros.

Butter Toast
Image: picture alliance/empics

Fifty-three-year-old Bernd S. told the court he was frustrated when he compared North Rhine-Westphalia State Premier Hannelore Kraft's IQ to that of "a piece of toast." He said he'd just received three more rejection letters in a job search that had lasted years, and that he himself was a bit toasted, having put back a few wheat beers before composing his critique of Kraft's idea to put unemployed Germans to work assisting refugees.

Bernd said he was even more "frustrated" when Kraft, a Social Democrat, wrote him back personally and cordially to give him the details of the plan she'd put together. He called Kraft and other female German leaders a "women gang," "a corrupt pack," even "assholes." But Bernd wasn't fined 2,250 euros ($2,480) for his misogyny, nor for any possible xenophobia, both of which are protected speech: His crime was insulting the state premier's honor, and the judge ruled that the beers were hardly a plausible excuse.

"There is not a single error," the judge said when she handed down her verdict late Wednesday. "Period and comma are in the right place." She dismissed the apology offered by Bernd, who had appeared in court without an attorney: "You have crossed a line and damaged another's honor."

For many, "line" might call to mind a clearly demarcated boundary - this side's all good, this side's no-go - but the line between permitted German speech and honor-damaging insult is more jagged, even squiggly. In theory, the constitution dictates that people be spared state violence, be allowed to live freely, be treated equally, be granted liberty of worship, and, Article 5, be "unhindered" as they "express their opinion in word, writing and image." However, the Basic Law also limits free expression in many cases.

Achim Doerfer, a lawyer who specializes in constitutional cases, said personal insults would be punishable if the person insulted were to insist on punishment, as Kraft did, but the Basic Law more or less protects broader statements.

"It's complicated," Doerfer told DW. Blanket statements such as "all Germans are Nazis" or "all citizens of the UK are Europhobic" are protected, he said, but the protection ends when one singles out members of those groups with such words. Bernd S. was fully covered by the constitution to "criticize Ms. Kraft's opinion or to criticize the SPD's party program," or even to wonder in the abstract whether a piece of toast might have better policies, Doerfer said, but the direct comparison constituted an insult to the state premier's personal honor.

Polizistenfeindliches Graffiti in Berlin Kreuzberg
ACAB is permitted speech when it refers to police broadlyImage: DW/H.Kiesel

All or none

In 1994, the Constitutional Court ruled that a pacifist didn't cross the line with the sticker "All Soldiers Are Murderers" - so long as the sticker referred to soldiers worldwide, and not individual troops, squads or the Bundeswehr in particular. And that has more or less been the line ever since: A profession can be insulted, but not necessarily those who profess it; politicians as a class can be called all the names possible, but descriptions of individual politicians must be formulated more carefully.

"When you want to criticize harshly and with sharp words, criticize the opinion, if necessary the practices, but not the person as such," Doerfer said.

In June, the Constitutional Court examined the initialism ACAB, or "All Cops Are Bastards," four letters seen often enough at football matches, marches and other places where the presence of police isn't necessarily appreciated. The court ruled that cops can legally be called bastards so long as the statement references police as a whole. Questioning the patrimony of individual officers might still be hazardous to one's freedom or finances, however, as that enters "personal honor" territory.

"A broad group is not capable of claiming injury," Doerfer said. "If I were to say 'all police at a specific station,' it could be punishable."

The ruling bore similarities to 2015's "FCK CPS" verdict. Some police, backed later by regional courts, have filled in the vowels and decided that the offense they've felt crossed the legal line. However, the Constitutional Court ruled that displaying the letters in public "is not automatically punishable": It would have to be a "defined group of people; otherwise the encroachment on free expression is not justified."

After Wednesday's verdict in Cologne, media reported that Bernd S. planned to seek representation for an appeal. Doerfer said he wouldn't likely have much of a case, given that the defendant himself admitted to directing his words (and apparently proper punctuation) at State Premier Kraft rather than the political system in general.

And, whatever complaints Bernd has about the verdict, he would be better off not mentioning the judge when he expresses them.