Another reason why bans on symbols lead to bad policy

As much as I oppose Holocaust denial, fascism, and neo-Nazis, you might recall that I am very much in favor of free speech. Indeed, I tend to take as broad an interpretation of the First Amendment as possible, and remain very grateful to our Founding Fathers for enshrining this freedom in the Constitution, where it's much more difficult to tamper with. But what happens when a distinctly anti-freedom of speech ban is enshrined in a nation's Constitution?

This is what:

A Stuttgart court fined a German company that specializes in anti-fascist paraphernalia adorned with swastikas for using the constitutionally banned symbol.

How far can individuals go in using a symbol banned by the German constitution?

It was just this question that the Stuttgart district attorney's office wanted clarified when it brought a case against Nix Gut, a mail-order company that offers left-wing garb adorned with modified swastikas.

The swastika is banned as a symbol of an unconstitutional organization, but German law allows its use if it is clearly in a form indicating opposition to National Socialism.

A crossed-out swastika reminiscent of a no-parking sign or a stick person throwing a swastika into a garbage can are images often used by the left-wing movement in Germany.

But a judge ruled on Friday that the use of the Nazi symbol by the company violated the law and fined the owner, Jürgen Kamm, 3,600 euros ($4,500).

Officials fear that neo-Nazis could skirt the ban

"It is not always so easy to recognize that these symbols are being used against Nazis, especially for foreigners," said Bernhard Häussler, the district attorney said.

The odd thing about this case is that Jürgen Hamm was fined, even though German law and the Constitution allow the use of these symbols to oppose Nazi-ism. On the surface, this makes little sense at all; so let's dig deeper:

The prosecution argued that German law strictly forbids the use of symbols associated with the Nazi regime, no matter in what context they are used in.

The Social Democrats, which make up one half of the power-sharing government, have accused the Stuttgart authorities of prosecuting someone whose actions were "a useful support to the democratic ethos."

Germany's federal court of justice ruled in 1973 that it was not illegal to produce a swastika providing it had clearly been altered for the purposes of protesting against Nazism.

During the trial, State Prosecutor Bernhard Häussler said the businessman was guilty of using symbols from unconstitutional organizations. The state argued that it is irrelevant what the intent of the wearer is, and also didn't matter that the symbol has been altered. The symbol should simply not be used publicly.

"It symbolizes the Nazi era," he said.

Nope, this whole thing still doesn't make any sense.

It's utterly ridiculous. The intent of the German law is to prevent the resurgence of Nazi-ism by banning speech that supports it and the symbols of the Nazi Party. (We'll leave aside for the moment whether it does that purpose any good.) What possible justification could the prosecutor have for bringing this case? Here's how Bernard Haussler, the Stuttgart District Attorney said:

Up to now, the justice system in the state of Baden-Württemberg, where the case was tried, handled this problem differently, on a case by case basis. But Stuttgart wanted legal clarity, fearing that if leftists could get away with using the symbol, then neo-Nazis might also find a way around the ban. Thus, the district attorney brought the suit against Kamm.

"There's a danger that the use of swastikas, even in a modified manner, will not be removed from our society," said the prosecutor. "So neo-Nazis could use them for their own means and this should under no circumstances be the case. We want to avoid a situation where the use of these symbols once again becomes normal."

That's exactly the problem with bans on specific speech or symbols. Even in the case where most authorities try to be "reasonable" about applying them, there will always be someone who will push the bans to the limit and take them absolutely literally, be it to "clarify the law" or to make an example of someone--or because he's afraid that letting people use the symbols to protest the very thing that the symbols stand for will somehow lead to groups that believe in what the symbols stand for finding a way to get around the law. In fact, this is the case will all laws. There will always be a prosecutor who takes a law to its limit to test its power, which is why laws need to be crafted as carefully and unambiguously as possible.

I understand all the arguments that Nazi symbols have a different and stronger, darker resonance in Germany they do in the U.S. I understand that the history of the Third Reich, the war, and the Holocaust leads to a particular sensitivity that we in the U.S. don't share, that these symbols provoke a real fear in some Germans that they may be vehicles for the resurgence of Nazi-ism. At the very least, they are a reminder of a part of German history that most Germans would prefer not to be reminded of. I realize that a ban on Nazi symbols made in the immediate postwar period. We often forget that the occupation of Europe at the end of World War II didn't immediately result in Germany becoming a democracy and our staunch ally. In 1945, Germany was in ruins, divided between the Soviets in the East and the remainder of the Allies in the West. Every one of its major cities was either destroyed or significantly damaged, and at least 12 million were homeless, their homes destroyed by either bombing or battle. There were millions of refugees fleeing west from the Soviets, and hunger was rampant. For democracy to have even a chance of developing in the chaos after the Nazi regime fell, it was reasonable and necessary to do everything possible to prevent the resurgence of Nazi-ism. After four years of occupation, when West Germany became a state, bans on Holocaust denial, the Nazi Party, speech glorifying Nazi-ism, and Nazi symbols were included in the Grundgesetz, or Basic Law of the Federal Republic of Germany.

That was all well over 50 years ago. It's been over 61 years since the end of World War II, well over two full generations. How much longer does Germany need these laws? Is its democracy still so fragile that it is still in danger of the resurgence of Nazi-ism?

The bottom line is that, not only are laws like this against Nazi symbols an offense against free speech, but they don't work. They suppress nothing. Indeed, as is the case with Holocaust deniers, if anything, they may even glamorize such odious and despicable beliefs, making them the "forbidden fruit" to those fancying themselves to be nonconformists and contrarians. Holocaust deniers, for instance, claim that they are telling "uncomfortable truths" that the government doesn't want people to hear, which is why denial is banned. So do neo-Nazis when they pontificate about how "world Jewry" (whatever that is) is running the world and keeping good Aryans from realizing their potential, if only they would "throw off the yoke." The only thing these laws accomplish is to throw pseudointellectual poseurs like David Irving into jail for three years for denying the Holocaust and to fine a businessman for selling anti-Nazi literature because his paraphernalia includes Swastikas with a circle and red line indicating "no Swastika allowed."

Of course, we in the U.S. are not immune to this sort of foolishness. We just tend to be prone to a different sort of foolishness over free speech. Instead of political symbols, we tend to get all worked up over speech with much less import, like profanity or sex. Either way, allowing free speech is hard. There will always be people who will say things that infuriate you or others--or the government. There will always be the tendency to want to shut them up somehow. But free and open debate is the very cornerstone of democracy, even if we have to let people with nasty beliefs have their say, too.