Nazi 'bird shit' and the limits of free speech in Germany

AfD co-leader Alexander Gauland has downplayed Nazi Germany's crimes by referring to the era as "bird shit." His remark has sparked backlash in the media, but from a legal standpoint, experts say he has little to fear.

Addressing the youth wing of far-right the Alternative for Germany (AfD) over the weekend, party co-leader Alexander Gauland said "Hitler and the Nazis are just a speck of bird shit in over 1,000 years of successful German history." His remark drew widespread condemnation in the country, including from a number of fellow party members. Critics accuse Gauland of downplaying the Holocaust, but does his statement have legal consequences, as well?

Section 130 of Germany's penal code defines incitement to hatred as a criminal offense. A range of crimes fall under this category, including inciting "hatred against a national, racial, religious group," and approving of, denying or downplaying "an act committed under the rule of National Socialism." Doing so is not protected by Germany's constitutionally-guaranteed freedom of speech, as the country's top court asserted in 1994. It said that denying the Holocaust equates to proclaiming a falsehood and cannot be classified as expressing an opinion.

Read more: The AfD's Alexander Gauland: From conservative to nationalist

Gauland claims his statement was taken out of context because, as he notes, he also said in his June 2 speech that "we accept our responsibility for the 12 years" of National Socialism, its millions of murdered Jews and war dead. Gauland argues he never intended to downplay Nazi Germany's crimes. The president of the German Bar Association, Ulrich Schellenberg, believes Gauland's remark "borders on criminal liability." He does not, however, think it will suffice to sentence Gauland for incitement to hatred. Schellenberg believes Gauland's remark was too broad to warrant sentencing. Also, Gauland did not explicitly refer to Nazi Germany's victims or comment on the severity of its crimes, he says.

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Alexander Gauland

Co-chairman Alexander Gauland said the German national soccer team's defender Jerome Boateng might be appreciated for his performance on the pitch - but people would not want "someone like Boateng as a neighbor." He also argued Germany should close its borders and said of an image showing a drowned refugee child: "We can't be blackmailed by children's eyes."

AfD leaders and their most offensive remarks

Alice Weidel

Alice Weidel generally plays the role of "voice of reason" for the far-right populists, but she, too, is hardly immune to verbal miscues. Welt newspaper, for instance, published a 2013 memo allegedly from Weidel in which she called German politicians "pigs" and "puppets of the victorious powers in World War II. Weidel initially claimed the mail was fake, but now admits its authenticity.

AfD leaders and their most offensive remarks

Frauke Petry

German border police should shoot at refugees entering the country illegally, the former co-chair of the AfD told a regional newspaper in 2016. Officers must "use firearms if necessary" to "prevent illegal border crossings." Communist East German leader Erich Honecker was the last German politician who condoned shooting at the border.

AfD leaders and their most offensive remarks

Björn Höcke

The head of the AfD in the state of Thuringia made headlines for referring to Berlin's Holocaust memorial as a "monument of shame" and calling on the country to stop atoning for its Nazi past. The comments came just as Germany enters an important election year - leading AfD members moved to expel Höcke for his remarks.

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Beatrix von Storch

Initially, the AfD campaigned against the euro and bailouts - but that quickly turned into anti-immigrant rhetoric. "People who won't accept STOP at our borders are attackers," the European lawmaker said. "And we have to defend ourselves against attackers."

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Marcus Pretzell

Pretzell, former chairman of the AfD in the state of North Rhine-Westphalia and husband to Frauke Petry, wrote "These are Merkel's dead," shortly after news broke of the deadly attack on the Berlin Christmas market in December 2016.

AfD leaders and their most offensive remarks

Andre Wendt

The member of parliament in Germany's eastern state of Saxony made waves in early 2016 with an inquiry into how far the state covers the cost of sterilizing unaccompanied refugee minors. Thousands of unaccompanied minors have sought asylum in Germany, according to the Federal Association for Unaccompanied Minor Refugees (BumF) - the vast majority of them young men.

AfD leaders and their most offensive remarks

Andre Poggenburg

Poggenburg, head of the AfD in the eastern state of Saxony-Anhalt, has also raised eyebrows with extreme remarks. In February 2017, he urged other lawmakers in the state parliament to join measures against the extreme left-wing in order to "get rid of, once and for all, this rank growth on the German racial corpus" - the latter term clearly derived from Nazi terminology.

AfD leaders and their most offensive remarks

Alexander Gauland - again ...

During a campaign speech in Eichsfeld in August 2017, AfD election co-candidate Alexander Gauland said that Social Democrat parliamentarian Aydan Özoguz should be "disposed of" back to Anatolia. The German term, "entsorgen," raised obvious parallels to the imprisonment and killings of Jews and prisoners of war under the Nazis.

AfD leaders and their most offensive remarks

... and again

Gauland was roundly criticized for a speech he made to the AfD's youth wing in June 2018. Acknowledging Germany's responsibility for the crimes of the Nazi era, he went on to say Germany had a "glorious history and one that lasted a lot longer than those damned 12 years. Hitler and the Nazis are just a speck of bird shit in over 1,000 years of successful German history."

'Legal gray zone'

The example of now 89-year-old far right extremist Ursula Haverbeck, in contrast, illustrates a clear-cut case of incitement to hatred in Germany. Haverbeck has been repeatedly sentenced and now jailed because she claimed, among other things, that Auschwitz had served only as a forced labor camp and not as an extermination camp.

Read more: Berlin and Beyond: Countering casual racism

German laywer Kristin Pietrzyk told DW that Gauland's statement falls into a "legal gray zone." She does not think "Gauland should be threatened with legal action. But politicians and society must distance themselves from his remark because no reasonable and historically educated person may say such a thing." Gauland "denied the singularity of Nazi Germay's barbarism" which "Germany's penal code does not classify as a a criminal offense."

A history of inflammatory remarks

It is not the first time AfD politicians have made such controversial statements. Often, they appear to know exactly what they can and cannot say so as not to commit a crime. When in 2017, Thuringia state AfD leader Björn Höcke demanded a "180-degree reversal on the politics of remembrance" and complained that "Germans are the only people who plant a monument of shame in the capital" in reference to Berlin's Holocaust memorial, outrage ensued — but no legal consequences.

Damian Lohr, who heads the AfD youth wing, also seems rather familiar with section 130 of Germany's penal code, knowing full well what it does and does not allow. At the organization's recent national summit, members sang the somewhat taboo first verse of Germany's national anthem, which even drew condemnation from the party's own executive committee. Written in 1841, the anthem's first verse called for German unity at the time. But later the Nazis, who retained the anthem, reinterpreted the lyrics as a celebration of German superiority, which is why today singing the first verse is frowned upon. Instead, only the third verse is used as the national anthem. Responding to criticism over choosing to sing the first verse, AfD youth wing leader Lohr later replied that no law exists proscribing this.

The AfD's Höcke called the Berlin Holocaust memorial a 'monument of shame'

Gauland was recently cleared of having incited hatred when he publicity called for the then-governmental commissioner for integration, Aydan Özoguz, who has Turkish roots, to be "dispose[d] ... in Anatolia." According to the public prosecutor, his statement was "just about covered by the principle of free speech," especially as public discourse tends to gets "harsher" ahead of elections.

Defining legal speech

The laws dealing with incitement to hatred vary significantly by country, particularly when it comes to Holocaust denial. In German-speaking countries and France, denying the Holocaust is a criminal offense, whereas in Holland, Spain and the United States, it is not. There are, however, other laws than can be marshaled to counter such statements. In the US, for instance, civil law allows plaintiffs to sue for damages, and many other countries have laws that classify Holocaust denial as racism or libel.    

Some German legal experts and critics, however, take issue with section 130 of Germany's penal code. Ten years ago, Wolfgang Hoffmann-Riem, a former judge at Germany's top court, said: "If I were a law-maker, I would decriminalize Holocaust denial." That is because Hoffmann-Riem does not believe the law is very effective. Instead, he argues that it is "politically clever to allow pressure valves rather creating martyrs."