Para. 103: More Bark Than Bite

Monday, April 25th, 2016

Many Germany observers are confused these days by the so-called Böhmermann Affair: Jan Böhmermann has his own show, called Neo Magazin Royale, on the German public television network ZDF, and on March 31 he recited on-air a poem concerning Turkish President Recep Tayyip Erdoğan that was not so nice, including as it did i.a. several references to the President’s alleged sexual practices. Top officials of the Turkish government, including Erdoğan personally, lobbied the German government to press criminal charges against Böhmermann; Angela Merkel herself eventually announced that the German State would indeed give its required go-ahead for a criminal investigation of Böhmermann for insulting a foreign Head of State.

What is going on with Germany? Isn’t it the country which, for some time now, has topped all opinion polls for world-wide admiration. This abridgement of elementary freedom of speech seems to hark back to the bad old Nazi times.

Not really, though; if anything, it harks back to the mid-1950s, when after a decade of Allied occupation Germany was getting back on its feet as an independent Western country. The former Shah of Iran – were he still around – would be glad to remind us of how speech in modern Germany is far from fully free.

Shah
Indeed, that paragraph of German federal law under which Böhmermann might be prosecuted – paragraph 103 StGB, forbidding “the insulting of organs and representatives of foreign States” – was for quite a while known as the Shah-paragraph, so often did the Persian monarch use it in his relations with the Federal Republic.

But first back to 1953, when German criminal law, having been suspended since that country’s defeat in 1945, is being restored – and authorities take care to re-institute paragraph 103, which dates back to Second Reich, that is, to the rule of German Emperors following the country’s unification in 1871. The political system of post-WWII Germany naturally was carefully designed by the occupying powers to try to ensure that such dictatorship as was seen during the Nazi regime could never happen again; for one thing, the peculiar American concept of federalism was introduced, so that the country was broken up into individual states each having rights and powers at their own local level.

But this new Germany was by no means designed to be any sort of liberal paradise with the world’s greatest personal freedoms. People’s memories were still fresh in 1953, only eight years after the Nazis’ gross crimes against humanity had been ended, and Germany was still to some degree a pariah state. There was no room, in other words, for the inevitable satirists and smart-alecks which such a fertile culture would inevitably produce to spoil the German government’s attempts to get back into the world’s good graces by ill-conceived, badly timed and just plain rude cross-border insults. Indeed, in 1958 Konrad Adenauer’s government wanted to go even further to prevent that sort of thing, namely to adding a paragraph 103a which would have outlawed the spreading of any sort of denigrating reference concerning the private lives of foreign heads of state or their families – whether true or not.

That extension was rejected by the Bundestag, the lower house of Germany’s federal parliament. But even in rejection the proposed law had a name: Lex Soraya, or “Soraya’s Law,” after the Persian Empress who was the Shah’s second wife, whom he was busy divorcing.

Nobody Cares; Nobody Really Punished

So the Shah lacked that extra bit of legal machinery to go after critics in Germany who said something insulting about his wives. But paragraph 103 gave him plenty of leeway to file charges against those insulting him personally, and he did so in three instances, the first in 1958. The same stricture applied, of course, against insults directed at other countries’ representatives, but the interesting point in this taz.de article is rather how the very prospect of such a foreign head of state complaining often caused the German police to move in ahead of the game and start confiscating materials and even arresting people being rude to foreign political figures, as they did in the case of insulting materials directed at such figures as then-Chinese President Li Peng, against the Chilean dictatorship of Augusto Pinochet, against Pope Benedict XVI and against visiting American Presidents Ronald Reagen and George W. Bush.

In all of those latter cases the police then had to back off and apologize because one key element required to prosecute such acts – namely, an official complaint coming from the “insulted” party – was not forthcoming. Thus we see that it has really mainly been the Shah who has actively taken advantage of this paragraph 103 during its post-War history. It is also important to note that the harshest punishment that ever resulted was “low-level fines” collected from editors at a Cologne newspaper (after a three-year trial) which published a disrespectful set of cartoons about the Shah in the 1960s.

Now the Turkish government is seeking legal redress as well. (Vice President Numan Kurtulmus has even publicly characterized Böhmermann’s poem as a “crime against humanity.”) That fact has caused many to worry that President Erdoğan, buoyed by how dependent Chancellor Merkel is upon him regarding the refugee situation, is deliberately using these insults directed against him to force her to turn Germany into something it has not been since 1945. Such concerns are misplaced, however, for a Bad and a Good Reason:

  • The Bad Reason: Paragraph 103 has been there as part of German federal law since that law was resurrected in the mid-1950s, so it’s nothing new; and
  • The Good Reason: Over-enthusiastic policing aside (which has always eventually been called back), it seems clear that the modern German legal system does have a good understanding of, and sympathy for, the right of freedom of speech, as we can see from the minor penalties courts have issued even when Paragraph 103 cases have managed to go all the way to trial and judgment.

In other words, while for much of its post-War history German diplomacy has operated within a difficult and awkward framework, so that measures such as Paragraph 103 were useful to have when citizens “misbehaved” vis-à-vis foreign potentates, in the final analysis they have amounted to mere window-dressing. When necessary, “action” can be seen to be taken, whereas no one is seriously punished as a result, and nothing (including the German people’s right to express themselves, in particular) fundamentally changes. OK, Jan Böhmermann may now be under police protection, and he has had to cancel the taping of a number of his shows – but he should enjoy his new status as media martyr, history shows he won’t pay much for it, if anything, and it might even enhance his career.

One might well see a parallel here with the “promises” concerning a resurrection of Turkey’s EU membership bid that are part of the recent agreement concerning the refugees – but that would require a separate post.

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