The 1st Amendment Will Not Save You

So, I’m getting my German ducks in a row in advance of my appearance in criminal court in Berlin on January 23rd. As most of my readers know, I am being prosecuted by the German authorities on trumped-up charges of tweeting Nazi propaganda, i.e., these two Tweets from 2022:

I’m not going to rehash all the details of my case again here. I have done that ad nauseam. And at this point it’s been widely reported on, most recently by James Kirchick in The Atlantic …

There’s a non-paywalled version of Kirchick’s article here for readers who don’t have subscriptions to The Atlantic. Or you can read Matt Taibbi’s coverage at Racket News, or watch this Grayzone interview in which I jabber about it with Max Blumenthal, or you can peruse these other articles and interviews.

I’ll be reporting on it more in the coming weeks (and possibly months), including on how the criminalization of dissent is being systematically carried out in Germany, i.e., the governmental, and quasi-governmental, and nominally non-governmental entities involved, and the nuts-and-bolts of how the system functions. For now, though, I just want to clear something up … mostly for my fellow Americans.

Many Americans seem to believe that Germany has no free-speech protections, or at least none comparable to the 1st Amendment. That is essentially a myth.

Here’s Article 5 of the “Grundgesetz,” i.e., the German constitution.

Article 5 [Freedom of expression, arts and sciences]: (1) Every person shall have the right freely to express and disseminate his opinions in speech, writing and pictures and to inform himself without hindrance from generally accessible sources. Freedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed. There shall be no censorship. (2) These rights shall find their limits in the provisions of general laws, in provisions for the protection of young persons and in the right to personal honour. (3) Arts and sciences, research and teaching shall be free. The freedom of teaching shall not release any person from allegiance to the constitution.

Many Americans also believe that displaying swastikas (or other Nazi symbols) — as I did in my two Tweets — is absolutely banned in Germany. This is also a myth. Here is the relevant German statute (see Subsection 2, emphasis mine).

§ 86 StGB Dissemination of Means of Propaganda of Unconstitutional Organizations

1. Whoever domestically disseminates or produces, stocks, imports or exports or makes publicly accessible through data storage media for dissemination domestically or abroad, means of propaganda:

   1. of a party which has been declared to be unconstitutional by the Federal Constitutional Court or a party or organization, as to which it has been determined, no longer subject to appeal, that it is a substitute organization of such a party;

   2. of an organization, which has been banned, no longer subject to appeal, because it is directed against the constitutional order or against the idea of international understanding, or as to which it has been determined, no longer subject to appeal, that it is a substitute organization of such a banned organization;

   3. of a government, organization or institution outside of the territorial area of application of this law which is active in pursuing the objectives of one of the parties or organizations indicated in numbers 1 and 2; or

   4. means of propaganda, the contents of which are intended to further the aims of a former National Socialist organization, shall be punished with imprisonment for not more than three years or a fine.

2. Subsection (1) shall not be applicable if the means of propaganda or the act serves to further civil enlightenment, to avert unconstitutional aims, to promote art or science, research or teaching, reporting about current historical events or similar purposes.

3. If guilt is slight, the court may refrain from imposition of punishment pursuant to this provision.

For the record, I have no problem with this statute. Actually, I think it’s pretty well-written. I think Germany has sufficient cause to ban Nazis from displaying pro-Nazi symbols. And the exceptions to this ban are clearly articulated. Personally, I have no desire to see neo-Nazis marching through the streets of Germany with Nazi flags or other Nazi insignia. But that has nothing to do with my prosecution.

The point is, my case is not about the law. In this instance, the German constitution and statutes guarantee my freedom of speech no less than the 1st Amendment. The problem here is not that the German laws are weaker than the 1st Amendment. The problem is that the German authorities are just using the law as a blatant pretext to punish me for publishing political dissent, and to make an example of me (and more famous public persons) to intimidate those who would challenge their power, which has nothing to do with enforcing the law.

In other words, my fellow Americans, the 1st Amendment will not save you.

If the authorities — you know, the ones with all the cops and the guns and the jails, and so on — decide to make an example of you, and they want to make it look legit, they will pervert the law however they need to. If you are a little fish like me, they’ll censor you, defame you, and prosecute you on trumped-up “hate crime” charges. If you’re a bigger fish, and, say, running for president, they will declare you a “traitor” and remove you from the ballot.

Yes, that’s right, my fellow Americans, the American authorities will do this to you. They are doing it to you right this minute. The context is different, but the game is the same. A global crackdown on dissent is in progress. A supranational crackdown on dissent. The authorities in countries throughout the West did not coincidentally decide that they needed to wage a war on “disinformation” and “dangerous speech,” and so on. The global-capitalist ruling classes (which own the nominally democratic governments of The Federal Republic of Germany and the United States of America, and every other nominally-sovereign Western country) are going totalitarian on us. I have been pointing this out for several years, which, clearly, they do not appreciate.

I love the 1st Amendment of the Constitution as much as any other American, but it will not save you — no more than the German constitution is saving me — not when the authorities decide to ignore it. Yes, I may ultimately prevail in the appeals courts, but that will not repair the damage already done to my income and reputation.

I don’t mean to imply that fighting this global crackdown on dissent in the courts is futile. On the contrary, it’s one of the only strategies we have, and I will certainly be doing that vigorously here in Germany, and reporting on it as events unfold. I’m just trying to dissuade my fellow Americans from feeling immune or .. well, superior, on account of the US 1st Amendment and misconceptions about Germany and Europe.

Oh, and, speaking of feeling immune or superior, if you happen to be an Elon Musk fan, maybe you can help me out. I need a couple of “Twitter Files” from Elon. I need the “Twitter Files” that document how the German authorities instructed Twitter to censor my Tweets in August of 2022, at the same time that they opened the criminal investigation, and instructed Amazon to ban my book in Germany, Austria, and The Netherlands. Those “Files” shouldn’t be too difficult to locate.

I haven’t heard back from Elon or Linda or any other honchos at X yet, but I assume they just haven’t seen my Tweet, as I am severely “visibility-filtered” by X. So maybe you can help me get through to them. Given Elon’s commitment to free speech, I am sure he will want to make an exception to his cancellation of the “Twitter Files,” and help me defend myself against these trumped-up charges.

Yes, I’ve been a little tough on Elon and his devoted fans in some of my columns, but I’m sure that he (and they) won’t hold that against me.

I mean, we’re all in this free-speech thing together … right?