Criminalization of Nazi Propaganda and Holocaust Denial

Internationally unique, Germany’s criminal code, the Strafgesetzbuch (StGB), delimits free speech permissions that are uniquely informed by the country’s history. StGB sections §130(3) and §130(4) are constructed to prevent the resurgence of National Socialism. Specifically, §130(3) criminalizes the public approval, denial, or dismissal of Nazi atrocities and the Shoah. §130(4) protects Holocaust victims’ dignity, banning any “disturbances of the peace” that might violate it. While less specific in their aims, §86 and §86a prohibit the distribution of unconstitutional propaganda, and §189 outlaws the defiling of the dead. §86, §86a, and §189 may be invoked in tandem with §130 in Holocaust denial cases. An example of this is the conviction of Holocaust denier Ernst Zündel, which implicated several of these penal sections in concert with one another.

The Case of Ernst Zündel

Ernst Zündel, a German national who was born in 1939 and emigrated to Canada in 1958, was a Neo-Nazi known for publicly denying the occurrence of the Shoah. He prolifically produced and disseminated antisemitic literature that falsified Holocaust history. In 2005, Zündel was extradited from Canada to Germany, where he faced criminal charges for his actions. Under StGB §189, Zündel was convicted of one count of “violating the memory of the dead.” He was also convicted of 14 counts of “inciting hatred,” provided for by §130. Zündel is only one of many German Holocaust deniers tried under these sections of the StGB. His case bears similarity to those of Germar Rudolf and Horst Mahler. Like Zündel, both Rudolf and Mahler were imprisoned for Holocaust denial and incitement to hatred. In addition to prosecuting Neo-Nazis, German speech laws parameterize how Nazi material may be displayed in public. 

Anti-Nazi Speech Laws in Public Life

StGB §86a provides legal grounds for prosecuting the use of Nazi symbols, including but not limited to the swastika, badges of honor, uniforms, and salutes. Similarly, slogans ranging from “Heil Hitler” to “Mit deutschem Gruß” (“with German greetings”) may not be used. The invocation of these phrases in public conversation is punishable by law. The “Horst Wessel Song,” used as a Nazi national anthem, also may not be played publicly. Further, the use of “SS,” “KZ” (German abbreviation for concentration camp), “HJ” (German for Hitler Youth), etc. on license plates is prohibited. However, this ban on Nazi symbols and phrases is not absolute. They may be used for historical and educational purposes, and under certain conditions for art and sufficiently critical satire.

Developing Defensive Democracy

Germany’s postwar legal system can be understood through the lens of “wehrhafte Demokratie.” This concept, meaning “defensive democracy,” suggests democracy is preserved by actively limiting the powers of antidemocratic actors. This ethic involves preventing the contagion of Nazi rhetoric by legally restricting it. Understanding the role of defensive democracy provides a basis for understanding why German speech laws specifically target Nazism. As Parliament guards against new forms of extremism, the laws supporting defensive democracy have evolved. Such amendments have been as recent as the addition of StGB §130(4) in 2005 and §130(5) in 2022.

2005 March on Wunsiedel and The Right to Free Assembly

In 2005, German authorities prohibited a Neo-Nazi march commemorating Hitler’s deputy, Rudolf Hess, at his burial place in the Bavarian town of Wunsiedel. To contend with these events, StGB §130 was amended to include subsection §130(4). This alteration bans future marchers from glorifying Nazi history and disturbing public peace. The amendment thereby validated a precedent that limits assembly rights in hateful or antisemitic contexts. This decision draws contrast to the United States Supreme Court, which in 1978 allowed Neo-Nazis to march in a Jewish town in Illinois. In 2022, section §130(5) was added to the criminal code. This amendment expanded the ban on trivializing the Nazi’s genocide or atrocities beyond the Shoah. These laws continue to evolve with the proliferation of online forums and media.

Enforcing Speech Laws Online and The Limits of Conventional Territorial Law

In 2017, the German Network Enforcement Law (NetzDG) was passed to adapt speech laws to the contemporary era. This occurred in response to the mobilization of Neo-Nazis online. NetzDG requires social media platforms and internet forums to remove, and often formally report to authorities, unlawful Nazi or white supremacist content. If companies do not comply within twenty-four hours, they may be fined as much as 50 million Euros. However, enforcing these laws is hardly straightforward. Some extremist actors have subverted NetzDG by hosting Neo-Nazi content on servers outside of Germany. In these cases, Germany maintains limited punitive jurisdiction. Furthermore, adapting these laws to the modern era involves navigating more than advancements in technology. Legislation also requires attention to evolving issues in the current geopolitical moment.

Israel-Palestine Free Speech Disputes

Contemporary debate regarding German speech laws has intensified as a result of the Israel-Palestine conflict. One such controversy includes the ban of the “From the River to The Sea” chant by some German courts. The mantra, popularized in Pro-Palestinian protests, was interpreted as a call for violence by some courts. Chanting it in public thereby constitutes a criminal offense in some German states. Concerns over the potential for antisemitic speech also caused authorities to shut down a Palestine Congress in Berlin in April 2024. The shutdown occurred after a speaker, Salman Abu Sitta, who was banned from public political activity due to antisemitic expressions, joined from abroad on screen at the conference. These controversies weigh the importance of free speech against threats of rising antisemitic violence in Germany.

Trends in Antisemitism, Holocaust Denial, and Free Speech

A 2026 UNESCO survey of 23 EU countries revealed that 61% of teachers reported encountering Holocaust “denial and distortion” inside their classrooms. UNESCO Director-General Khaled El-Enany warns against record highs of antisemitism in Europe since WWII. However, the Anti-Defamation League’s (ADL) international index of antisemitism ranks Germany as comparatively low in antisemitic attitudes; ranked seventh out of 103 countries. (The index classifies lower rankings as more antisemitic countries, and higher rankings as more tolerant ones.) According to the ADL, 86% of Germans believe the Holocaust occurred as well as was accurately reported. Nonetheless, antisemitic incidents have reportedly surged by 248% since 2022. While political shifts inspire increasing levels of antisemitism, Germany’s speech laws are likely to become even more topical.