History Against Free Speech: The New German Law Against the “Auschwitz” — and Other — “Lies”

An American observer would expect the central issue in the public debate to be the conflict between the constitutionally protected values of individual freedom of expression on the one hand and public security and personal honor on the other. This, however, has not been the case. To the contrary, the constitutional issue has played a marginal role in the legislative process, and it has been resolved by the courts with obvious ease in favor of the constitutionality of the previous legislation on the same general subject. There is every reason to believe that the new law will also be upheld, even though, as we shall see, it potentially restricts freedom of speech still further. Moreover, it has been widely assumed (albeit with some dissent) that law and the courts have a significant role in protecting against the infamous and the ignorant who propagate the “Auschwitz lie.” The core issue in public discourse has been the scope and the modalities of this contribution.

In this essay I propose, first, to outline the state of the legislation before the enactment of the new law; second, to illustrate the travail of the courts in applying that legislation; third, to identify the principal legal and political issues that have emerged in the wide-ranging debate surrounding the genesis of the new law and in the lawmaking process itself; and fourth, to consider early reactions to the law and its implications in the broader context of contemporary Germany.