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.

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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.

'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.

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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.

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."