Björn Höcke (g) is the baby-faced reactionary high school history teacher whom every right-thinking German loves to hate. He’s been called every name in the book, and any public appearance by him usually attracts a counter-demonstration. A left-wing German group called the Center for Political Beauty even built a miniature replica of the Holocaust Memorial next to his house – a response to Höcke’s description of the actual Holocaust Memorial in Berlin as a ‘monument of shame’.
Höcke is the speaker of the parliamentary group of the right-wing AfD Party in the legislature of the German state of Thuringia, and co-founder of the most right-wing tendency within the AfD, the so-called Flügel (Wing). Höcke believes in national pride, traditional gender roles, authoritarian leadership, strict immigration controls, and in general, a tradition of heritage. However, Höcke stridently denies that he is a fascist or fascist sympathizer.
But can he be called a fascist by his political opponents? That was the question before a German administrative-law court in the city of Eisenach. To counter a speech by Höcke, left-wing groups planned a counter-demonstration with the theme ‘Protest Against the Racist AfD and especially the Fascist Höcke’. The city of Eisenach issued a permit for the demonstration, but ordered that the word ‘fascist’ not be used. The city cited the German law governing demonstrations, which permits local authorities to forbid demonstrations which had the potential to lead to disorder or criminal acts. And the description ‘fascist’, the city argued, would violate Section 185 of the German Criminal Code, which prohibits serious insults which violate personal honor. The protesters appealed to the local administrative court, citing their right of free expression under Article 5 of the German Basic Law, saying ‘fascist’ was a legitimate political value judgment protected by freedom of speech.
In a judgment (g) handed down on 26 September, the administrative court agreed with the protesters. The court first held that calling someone a ‘fascist’ could certainly qualify as an insult. No surprise there. The court then laid out the basics of German free-speech law. Although the Criminal Code contains several provision banning insults and defamation, these must be balanced against freedom of expression, as guaranteed by Article 5:
The basic right protected by Art. 5 para. 1 of the Basic Law … becomes centrally important when — as here — aspects of public opinion formation play a role. During the struggle of political debates, exaggerated and overly-generalized descriptions of the opponent, as well as rude, drastic, tactless, and impolite formulations which appear, during the heat of argument, as mere lapses in good manners (bloßes Vergreifen im Ton). When competing interests are weighed, as necessary to determine whether an attack is appropriate, the question of what level of negative criticism is permitted is profoundly influenced by whether the comments were made during a debate on ideas (geistige Auseinandersetzung) which relates to subjects of general importance and therefore helps to shape public opinion, in the broadest sense.
The court then turned to the proof the protesters offered in favor of their characterization. This consistent of excerpts from Höcke’s speeches and book Nie zweimal im denselben Fluß (g) (‘Never twice in the same river’, a reference to Heraclitus). The protesters argued that these quotations showed that Höcke regrets the fact that Germany lost World War II, proposes the violent exclusion of minorities and dissenters from the German body politic, believes that Germany needs a new Führer, and believes the German Volk is going to be ‘replaced’ by foreigners unless Germans rise up to protect themselves. These quotations, the court held, constitute at least some support for the characterization of Höcke as a fascist. Therefore, since the allegation is not “made up out of whole cloth”, it is permissible to call Höcke a ‘fascist’.
The judgment made nationwide headlines in Germany, and was celebrated by Höcke’s political opponents (and, of course, denounced (g) by the AfD). However, many who have discussed the decision ignore vital context. First of all, and most importantly, the court did not say Höcke is a ‘fascist’. Nor did the court say that the citations from Höckes speeches and writings proved he was a fascist. The court held only that these citations provided some evidence supporting the protesters’ characterizations. Even during political debate, an insult lodged without any proof to back it up (“politician X uses hard drugs/takes bribes”) can still be an actionable insult. Here, though, the protesters had at least some proof, which brought their attack on Höcke within the realm of political value judgments, expressed with exaggeration and heated rhetoric. The court didn’t say that it was proper to call Höcke a fascist, only that it was not illegal to do so, in this particular context.
Further, the decision was made in the context of a summary proceeding (Eilverfahren). The parties had filed a flurry of last-minute motions shortly before the speech/protest, and the court had to make a rapid decision, so the parties would know what rules applied to their actions. The court called specific attention to this at the end of its judgment:
Given the limited scope of review in a summary proceeding, and the short time remaining to the Court to reach its decision, the [protesters have] offered sufficient proof that their value judgment was not simply invented, but rather is based on reviewable facts (überprüfbare Tatsachen) showing that this dispute involves an important public issue relating to a prominent politician, and — even if the critique is polemical and exaggerated — was not primarily intended to defame a person.
So from now on, Höcke will have to live with being called a ‘fascist’. But that label doesn’t, as some people have implied, now bear the imprimatur of the German legal system.