In the German Federal Republic is illegal to say "Heil Hitler" which is basically a restriction of laws relating to one's freedom of opinion, freedom of speach and political freedom.

Why does the German Federal Republic have these seemingly contradictory laws?

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    Rights must always be weighed against each other. Freedom of expression does not automatically override other rights, not even in countries like the US. The fundamental principle of all German law is that “human dignity is inviolable”. Nazi ideology denies dignity to some humans, goes against the liberal-democratic order, and therefore cannot enjoy the usual protections. Rule of law is still maintained because restrictions to the freedom of expression are codified in law, and violators will get a fair trial.
    – amon
    Commented Mar 7, 2022 at 13:09
  • @amon I just had to quote you there!
    – Trish
    Commented Mar 7, 2022 at 14:58

2 Answers 2


Any country is their own sovereign

There is no international law that demands any state to allow anyone free speech of all kinds. Remember that your rights end where the rights of others [incl. society] begin.

And in Germany, the right of the society is defined as being not subjected to the symbols of illegal organizations, especially ones that try to violate the liberal democratic basic order

Also, Germany is not alone in banning the sentence or the accompanying gesture. They are also illegal to various degrees in Austria, Switzerland, Slovakia, The Czech Republic, and Sweden. It also can be illegal in the US, if disturbing the peace.

The sentence is an identifier for a banned organization

The sentence is certainly illegal if spoken to express certain things. However, it is legal to be used for example in art (films) and is commonly found in lecture material, as one example of how the nazi party identified.

But how? People are often confused, but the rule is actually somewhat easy: If you display any symbol of a banned, unconstitutional organisation (under § 86a StGB) like any of the logos of the Nazi Party and spiritual successors (those with a red bar: banned!) or even the PKK, then you are acting in an illegal manner. And unless you have an exception to claim, the determination can be done entirely on a factual basis by looking at the circumstances. Indeed, the mens rea requirement is so minimal (because the law is written in a way that there is none needed!), that posting photos of a swastika tattoo can get you convicted for jailtime


However, I mentioned exceptions. Those are in § 86a StGB(3), pointing to $ 86(3)&(4) [eng]:

(3) Die Absätze 1 und 2 gelten nicht, wenn die Handlung der staatsbürgerlichen Aufklärung, der Abwehr verfassungswidriger Bestrebungen, der Kunst oder der Wissenschaft, der Forschung oder der Lehre, der Berichterstattung über Vorgänge des Zeitgeschehens oder der Geschichte oder ähnlichen Zwecken dient.

(4) Ist die Schuld gering, so kann das Gericht von einer Bestrafung nach dieser Vorschrift absehen.

(3) Subsection (1) [and (2)] does not apply if the propaganda material or the act serves civic information, to prevent unconstitutional activities, to promote the arts or science, research or teaching, reporting about current or historical events, or similar purposes.

(4) If the degree of guilt is minor, the court may dispense with imposing a penalty under this provision.

That is why we have swastikas in German school books, as those tell about the horrors of nazi germany. That is why the logos can be found in research material and history books analyzing the use of the symbols in different countries. That's why the news outlet filming the demo where people yell Heil Hitler show that footage without precautions (unlike those that fly the banned symbol!)

That is why you can have the film Inglorious Bastards with all its Swastikas and people yelling Heil Hitler, but its advertisement material was specifically altered to not show those.

However, until August 2018, computer games were not accepted as arts. This is why the German versions of Wolfenstein that did get a german release before had been altered to remove Swastikas and voice lines. But the "Sozialadäquanzklausel" had been applied to computer games in August 2018, and the games got (after some other hoops) re-released in their international version on 22nd November 2019.

How come some ideologies are banned?!

Germany's equivalent of a constitution is the Grundgesetz (Basic Law). Its first 20 articles (not paragraphs or sections!) prescribe the rights of any person. The very first and most important one is, and the very first sentence of it makes clear what the very guiding principle of all other laws has to be (emphasis mine) before any of the other basic rights are enumerated.

Art. 1: Die Würde des Menschen ist unantastbar. Sie zu achten und zu schützen ist Verpflichtung aller staatlichen Gewalt.

Art. 1: (1) Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.

This is the most absolute right anyone can have. There is no provision in any way that would allow (or make it possible!) to strip or reduce the human dignity and every human being, living and dead, has it. Violations of human dignity have been used quite often to repeal laws, such as several incarceration methods or when cuts to the social security system would prevent someone to live a life that would be without dignity.

Human Dignity is the measure that can be used to cut all other rights. In fact, it is explicitly the foundational principle of all german laws, that rights are not granted beyond where other rights start and that nobody has any rights when it comes to harming the constitutional order derived from the Grundgesetz (emphasis mine):

Art. 2: (1) Jeder hat das Recht auf die freie Entfaltung seiner Persönlichkeit, soweit er nicht die Rechte anderer verletzt und nicht gegen die verfassungsmäßige Ordnung oder das Sittengesetz verstößt.

(1) Every person shall have the right to free development of his personality insofar as he does not violate the rights of others or offend against the constitutional order or the moral law.

Now, where comes freedom of speech? Only in Article 5, and it is absolutely not absolute but has defined limits (emphasis mine):

Art 5:(1) Jeder hat das Recht, seine Meinung in Wort, Schrift und Bild frei zu äußern und zu verbreiten und sich aus allgemein zugänglichen Quellen ungehindert zu unterrichten. Die Pressefreiheit und die Freiheit der Berichterstattung durch Rundfunk und Film werden gewährleistet. Eine Zensur findet nicht start.

(2) Diese Rechte finden ihre Schranken in den Vorschriften der allgemeinen Gesetze, den gesetzlichen Bestimmungen zum Schutze der Jugend und in dem Recht der persönlichen Ehre.

(3) Kunst und Wissenschaft, Forschung und Lehre sind frei. Die Freiheit der Lehre entbindet nicht von der Treue zur Verfassung.

Art 5: (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.

Parties and organisations that can't abide by the other rules of law because of their ideology will get banned based on that. In the case of the nazi ideology, it's quite simple: The core idea of Rassenlehre and its believe in Untermenschen is so deeply dehumanizing that there can't ever be a way to get that in line with the very first (as well as 2nd and 3rd) Article of the Grundgesetz. Or to quote the words of Amon:

Nazi ideology denies dignity to some humans, goes against the liberal-democratic order, and therefore cannot enjoy the usual protections. Rule of law is still maintained because restrictions to the freedom of expression are codified in law, and violators will get a fair trial.

You see, you simply don't even have an absolute right to disseminate your ramblings, because the Basic law itself points to the general laws that ban the dissemination of certain materials. This is how § 86 StGB can ban any propaganda material for organizations and § 86a StGB subsequently bans their symbols, including gestures and slogans.

  • Yes there is no international law*, but there is natural right, and basically this is banning of the political dissidence at a constitutional level. Commented Mar 7, 2022 at 10:10
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    @FranciscoBytheway - "Natural Right" isn't necessarily a deciding factor in legality. I suggest you take your question to Philosophy.SE if that's what you want to discuss. Commented Mar 7, 2022 at 10:48
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    Why a law is the law in that jurisdiction is not on topic for this site. You might ask on Philosophy.SE as to how morally correct it is, or on Politics.SE as to the political reasons for the law. As it is, this question and your comments, just come across as a thinly disguised rant on your part about a law you don't like. Commented Mar 7, 2022 at 12:46
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    @FranciscoBytheway I have expanded how the german constitution allows to ban an ideology, and in fact demands it for Nazism.
    – Trish
    Commented Mar 7, 2022 at 15:10
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    @GeoffAtkins While it is generally true that "why a law is as it is" is generally off-topic on law.se, legal history is explicitly on-topic, and when a law is deeply embedded in such history, its rationale may be on-topic also. Queations about "legal doctrines and theory" are also explicitly on-topic here. I would not call this question a rant but a confusion. Commented Mar 7, 2022 at 19:36

I believe that the OP has misunderstood what the "rule of law" is generally understood to mean. It does not mean adhering to or even being guided by one of the various versions of "Natural Law" that have been proposed. Nor does it mean "being a liberal democracy". Nor does it mean "Having perfectly consistent laws". Nor does it mean "respecting the rights enshrined in various UN Declarations".

A country that respects the rule of law passes laws through some publicly known mechanism, usually some sort of legislature. An official is not allowed to charge a person with a crime unless a relevant law is already in place, duly authorized. No one official can change the law on a whim, or by decree, although a law may give an official power to issue regulations or to interpreter the law.

In general the "rule of law" is an ideal not perfectly achieved, but true far more often than not in those countries generally accepted as following it. But it does not imply any specific right except the right not to be subjected to the arbitrary whims of an official, whether petty or high.

Some form of Freedom of Speech and Freedom of political thought is protected in many countries that respect the rule of law, but it is to some extent limited in most.

I can imagine a country in which all laws are made through an open legislative process, and officials have very little power to vary such rules, but in which there is little or no freedom of speech, freedom of worship, freedom of movement, or other personal freedoms. Such a regime would be authoritarian but not dictatorial. It could be said to respect the rule of law, but not fundamental human rights. The former Soviet Union claimed to respect the rule of law in this sense, but in practice it did not. But one can imagine a state which does respect the rule of law, but not human freedoms or dignity.

As to the law on Nazi salutes and symbols in current Germany, they are indeed against the law there. This is obviously due to the history of the Nazi party and World War II, and the German consensus that resurgent Nazi sympathies or other similar racist ideologies could be a threat to the democratic state and human rights in Germany. Whether that is a wise law is beyond the scope of this site. It is a clear exception to the general law of freedom of speech in Germany. Many laws have limited, specific exceptions, which does not make them inconsistent. But inconsistent laws are also not uncommon. Neither is a denial of the rule of law.

  • Well, only sharia-governed countries don’t really guarantee FOS, yet the reasons for that are found in Islam. Otherwise all nations recognize FOS now, including the PRC (Article 35 of the Constitution) and, to my surprise, even the DPRK (Article 67 sentence 1 of the Constitution). It’s really just the environment, to what degree you can freely have and express your opinion. FOS is certainly under attack in Germany, France, the US and everywhere else, you need to constantly defend it, but this is in fact a political debate. Commented Mar 7, 2022 at 22:00
  • @Kai Burghardt It is my understanding that a number of countries do not in practice have strong protections for the freedom of speech, including Russia, the PRC, the DPRK, and others. I would not call that 'just the environment". Protection those rights is in part a political matter, but in part it is a matter of law. In the US a matter of constitutional law. Commented Mar 7, 2022 at 22:09
  • My argument is actually that in writing you got FOS in the PRC as strong as in the US. By law no specific opinion is per se forbidden in either jurisdiction. It is the environment, however, what law enforcement persecutes, how judges construe the law, or the climate in general, that sets the limits here. Legally you could say pretty much anything, yet some opinions are subject to particular scrutiny though. Commented Mar 9, 2022 at 12:18
  • @KaiBurghardt "as strong as in the US." That does not appear to be the case. The US constitution, for example, explicitly restricts legislators ("Congress shall make no law...abridging the freedom of speech, or of the press...") whereas the Chinese constitution article 35 says merely "Citizens of the People's Republic of China enjoy freedom of speech, of the press, of assembly, of association, of procession and of demonstration," seemingly leaving it to legislators to define the details of what that means.
    – cjs
    Commented Jul 24, 2022 at 1:42
  • And no, it is not the case in China that "legally you can say pretty much anything"; the censorship committees have some very clear standards about some things you cannot talk about, such as the 1989 Tiananmen Square protests. I am not sure to what degree the specifics are actual law vs. regulation supported by law, but there's clearly enough direct law involved that people can be prosecuted and receive prison sentences for saying certain things.
    – cjs
    Commented Jul 24, 2022 at 1:46

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