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Trial Highlights Limits of Free Speech in Germany

Kyle James
February 20, 2006

On Feb. 9, Ernst Zündel, a Holocaust denier, faces a German court on charges of inciting racial hatred and defaming the dead. The case shows that while Germany guarantees freedom of expression, there are limits.

Holocaust denier Ernst Zündel was deported from Canada to face trial in GermanyImage: AP

According to prosecutors, Ernst Zündel is one of the "most active" Holocaust deniers today. He began distributing Nazi and neo-Nazi propaganda in the 1970s and has written several books praising Adolf Hitler and the Nazi regime. Since 1995, he has been associated with a Web site that carries his name and is one of biggest online repositories of Holocaust-denial propaganda.

But Zündel, who was born in Germany's Black Forest region, was only able to engage in such activities because he was living outside of his native county, in Canada and the United States.

Although freedom of the press and of expression is written into German law, the country is generally more wary of free speech than the US, where Zündel's dissemination of racist literature and refutation of the Holocaust -- while distasteful to most -- was perfectly legal.

In Germany, however, it was not. Zündel was deported to his native country in March 2005 after a long legal battle with the Canadian government. He found himself immediately under arrest and up against the German justice system. If the 66-year-old is found guilty by a court in Mannheim of incitement to racial hatred, libel and defamation of the memory of the dead, he faces up to five years in prison.

Constitutional rights and constraints

Article 5 of Germany's constitution, or Basic Law, enshrines the right of freedom of speech and of the press.

"Everyone has the right to freely express and disseminate their opinions orally, in writing or visually and to obtain information from generally accessible sources without hindrance," states paragraph one of the law. "Freedom of the press and freedom of reporting through audiovisual media shall be guaranteed. There shall be no censorship."

Symbolbild Verfassung Grundgesetz Deutschland
Germany's "Basic Law"Image: dpa - Fotoreport

But the next paragraph puts certain limits on that freedom, which were deemed necessary when the Basic Law was proclaimed in 1949, just four years after the end of World War II and the downfall of the Nazi dictatorship.

"These rights are subject to limitations embodied in the provisions of general legislation, statutory provisions for the protection of young persons and the citizen's right to personal respect," reads the second paragraph.

German law therefore constrains press freedom, said Udo Branahl, a professor of media law at the University of Dortmund.

"The penal law code says Holocaust denial is a punishable offense," he said. "That ban limits press freedom and overrides the right to free expression in the mass media."

Germany is not the only European country to make Holocaust denial a crime. France, Italy and Austria have similar statutes on the books.

Criminal abroad, tried in Germany

So while in the US and Canada, Zündel could freely present his "evidence" that the gas chambers and crematoria of the Third Reich did not exist, in Germany, he was committing a crime that he would be tried for, even though it was not committed on German soil.

Holocaust Gedenktag Auschwitz
German courts have considered the severity of Holocaust in weighing free speech against individual rightsImage: AP

The country's Federal Constitutional Court confirmed in 1994 that Holocaust revisionism is not protected speech.

"In weighing the importance of free speech against that of individual rights, courts must consider on the one hand the severity of the offense caused by Holocaust denial to the Jewish population in light of the suffering inflicted upon it by Germany," the court wrote at the time. "This court has consistently protected the personal honor of those defamed above the right of others to make patently false statements."

In the United States, where a broader definition of the freedom of expression has traditionally been considered one of the country's most foundations, this limitation on expression is often met with disapproval.

"I disapprove of what you say, but I will defend to the death your right to say it," goes a citation from Voltaire that's often quoted.

"I've spoken with a lot of Americans, and they don't understand us," said Wolfgang Wippermann, a professor at the Freie University in Berlin who studies Nazism and right-wing extremism. "I tell them, 'In your country, drug dealers also go to prison; these Holocaust deniers are like drug dealers, but dealing in mental poison'."