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Today I learnt that Germany is considering a three year jail sentence for burning the EU flag, and also that they currently prohibit the burning of the German flag.

This prohibition isn’t solely for extremists such as nazis who want to overthrow the German government - there’s a sub-category of crimes where it involves the aim of eradicating the government or violating constitutional rights.

What rationale does Germany (or any other similar ex-nazi country) have for banning the burning of the national flag? As far as I’m aware, Germany, and also Austria, are by and large ashamed of their nazi past and want to avoid a repeat of it.

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    I'm curious why you specify "or any similar ex-nazi country"? Do you have a reason to think this policy is related to that history? I'm not challenging it, it just struck me as odd and I wasn't clear on the connection – divibisan Sep 26 '19 at 23:24
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    Fair point, though flag burning was banned in 48/50 US states until the Supreme Court overturned those laws in 1989, so they're not alone among developed nations in having those sorts of laws. – divibisan Sep 26 '19 at 23:39
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    Why do you think the answer would be different than in any other country which bans (or tries to ban) the same action? Wikipedia lists at least France, Italy and Israel as having similar laws, and that's by scrolling up and down a little in the same page you linked. – Fizz Sep 27 '19 at 0:07
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    And interestingly some countries already ban burning the EU and the UN flag. rferl.org/a/… You're probably not gonna guess the list of who bans that though. – Fizz Sep 27 '19 at 1:02
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    A bit off-topic, but, interesting country-specific differences. The advisable way to dispose of a Finnish flag is to burn it. You can also cut it into pieces and throw it away [in a few separate lots] as part of your normal household waste (!) (We are practical) Burying it in soil/sea seems to be a crime. The US flag, in contrast, can be buried, but also burning is accepted. – Tuomo Sep 27 '19 at 13:55
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To understand why flag burning is prohibited, you need to understand this in the context of the fact that, in general, free speech protections in Germany are not as broad and absolute as in the United States.

No country in the world makes heavier use of criminal defamation offenses than Germany, and being unnecessarily insulting without making a false statement of fact can give rise to criminal defamation liability in Germany. I discuss this at length in an answer at Law.SE. Some highlights from that post:

In Germany, you usually don't even need to hire your own lawyer to sue someone for defamation. Instead, often a government prosecutor will bring criminal charges at public expense against someone who allegedly defamed you.

Roughly two hundred thousand criminal defamation cases are investigated by law enforcement each year in a country with about 25% of the population of the United States.

Merely insulting someone in public in Germany is a misdemeanor and such cases are seriously investigated when they involve high government officials including foreign ones. For example:

"In 2007, a Swiss citizen living in Bavaria was convicted of insulting Swiss President Micheline Calmy-Rey and sentenced to pay a criminal fine."

Similarly:

"The Beleidigunggesetz, or law protecting people against insults, isn’t always enforced, but certainly can be. “The law against insulting another person in public has been on the books since 1871, and it can be taken quite seriously in Germany,” said Volker Schmitt, a lawyer based in Berlin.

Paragraph 185, Section 14 of the criminal code still reads almost exactly as it was written 145 years ago: “An insult shall be punished with imprisonment not exceeding one year or a fine and if the insult is committed by means of an assault with imprisonment not exceeding two years.”

“The law is designed to protect people’s honor,” said Karsten Gulden, a lawyer who specializes in the issue. “Respect for people and their reputation enjoys legal protection, and shouldn’t be verbally violated.”

There were 218,414 cases of insults filed with prosecutors in Germany in 2015, down slightly from 225,098 in 2014, but far above numbers of around 150,000 recorded a decade ago. Americans and other foreigners living in Germany sometimes run afoul of the law, unaware of it, and end up being called into police or prosecutor’s offices to explain their side of the story, before their cases are usually dismissed.

Hardly anyone ends up in jail for insulting their neighbor in the midst of a heated dispute, or for flashing the middle finger — the Stinkefinger, or “stinky finger,” as Germans call it — at another motorist in heavy traffic. But cases do wind up in court and fines are sometimes handed down.

In a precedent-setting 1995 ruling, a Schwaebisch Hall court awarded a man 460 euros over racist comments against his wife, who is black. In 1997, a boss who called a pregnant employee “Germany’s laziest worker” in an in-house magazine was fined 2,500 euros. In 1998, a court in Heilbronn awarded a police officer 350 euros after another person called him a “wanker.”"

It is a felony punishable by up to two years in prison to speak ill of the dead in Germany, even if the statement is true.

In contrast:

Between 1992 and August 2004, 41 criminal defamation cases were brought to court in the United States, among which six defendants were convicted.

From 1965 to 2004, 16 cases ended in final conviction, among which nine resulted in jail sentences (average sentence, 173 days). Other criminal cases resulted in fines (average fine, $1,700), probation (average of 547 days), community service (on average 120 hours), or writing a letter of apology.

In general, one way to summarize Germany's attitude towards free speech is that in Germany that right does not extend to abusive, insulting, or hateful communications, even if they aren't false statements of fact, in much the same way as most countries don't provide legal free speech protections to imminent threats

Put another way, Germany enforces genuine civility standards as a matter of criminal law. In that context, a ban on flag burning isn't surprising.

It is also helpful to understand that in Germany, most misdemeanor and minor felony sentences, such as sentences for flag burning, insulting the dead, or defamation are usually carried out, not in the form of actual incarceration, but in the form of "day-fines" with the fine equal to roughly one day's income (less some minimal necessities) times the number of days of incarceration authorized by law, with the fine actually imposed frequently being much more lenient than the maximum punishment authorized by law.

Thus, it wouldn't be unusual for a sentence for a crime for which a three year sentence is authorized to actually amount in practice to a 2,500 to 20,000 Euro fine whose exact amount would be established, in part, based upon the income of the person fined, and in part, in the discretion of the court.

This is one of the reasons that the incarceration rate in Germany is so much lower than in the United State.

Historical Basis

Some of this attitude towards free speech in Germany arises from a desire to de-Nazify Germany after WWII, but it also has much deeper roots in German political and legal culture about the appropriate scope of government.

In the same vein, in the Kingdom of Prussia, which was the largest of the antecedents to the German state that was unified in the 1870s, there was a statute decreeing when people were to do their laundry and other fine details of daily life. It was the sort of place where rules of etiquette that have no legal effect in common law countries like "don't wear white after labor day"(this particular one wasn't a Prussian law but is similar to many laws that it did have) might be enforceable as a matter of criminal law rather than merely being a socially enforced suggestion.

Germany's laws, in general, have historically been oriented towards what should be expected from a "good person" rather than following the English political theory tradition that government should intervene by law only to the minimal extent necessary to maintain order and a functioning society.

Freedom of Religion Compared

This attitude isn't limited to freedom of speech either. As another example, Germany has a strongly protected freedom of religion, but in a much more regulated way than would be tolerated under the United States Constitution.

For example, you have a right to declare your affiliation with any religion you wish in Germany. But, if you want to change your affiliation you have to file an official form with the government (which changes the denomination to which your government collected "church tax" is paid), acknowledge that you have received certain written warnings about the risks of doing so, and provide proof that you have attended a session with a member of the clergy in the religion or denomination you are leaving. At that session you will be warned, for example, that you may face damnation, will disappoint your relatives who aren't changing their religious affiliation, and won't be able to be buried in religious cemeteries of your old faith any more, in the event that you go through with filing your application to change your religious affiliation.

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    Much of this attitude is found to different extents across Europe, free speech protections are often contextualized as "freedom from the speech of others if wanted" rather than a "freedom to use your own speech if wanted". Both sides of the ocean simply mean a different thing when they say "freedom of speech". Combined with the (understandably) heavier emotional investment by Americans, it's logical that European laws seem awfully restrictive sometimes. – DonFusili Oct 4 '19 at 10:21
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    A lot of this answer is misleading, sometimes bordering to wrong; e.g., “often a government prosecutor will bring criminal charges at public expense against someone who allegedly defamed you” – in fact, in most defamation cases the opposite will happen, and the government prosecutor will find that there is no public interest in pressing charges (happened 199946 times in 2018, according to official statistics). The final part about leaving a religious group is blatantly wrong. I myself left the Roman Catholic church and certainly did not have to attend such a session nor receive any warnings. – chirlu Oct 4 '19 at 10:44
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    @DonFusili The different attitude towards freedom of speech in the US and in Germany can be seen very well in translation. Freedom of Speech is usually translated into German as "Meinungsfreiheit" which literally means "Freedom of opinion". – Philipp Oct 5 '19 at 8:08
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    "provide proof that you have attended a session with a member of the clergy in the religion or denomination you are leaving" - i didn't had to do that when I left the protestant church. I never heard of anyone having to do that either. It is a purely administrative act in two steps: updating your residence registration and update your taxation status. Meeting with a religious representative could be something you need to do in Bavaria, but even that seems dubious to me. Maybe someone didn't know better and asked the church themselves how to leave them and that's how that rumor was created? – Philipp Oct 5 '19 at 8:11
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    And besides that paragraph being factually wrong, I also don't see what it has to do with flag burning. – Philipp Oct 5 '19 at 8:24
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What is under consideration in Germany:

It seems that there are indeed discussions about making it illegal to burn the EU flag (Droht bald Haftstrafe fürs Verbrennen der EU-Fahne?, Saarbrücker Zeitung).

Currently it is illegal to burn the flags of Germany or of its constituent states according to §90a (1) StGB "Disparagement of the state and its symbols".

(1) Whosoever publicly, in a meeting or through the dissemination of written materials (section11(3))

  1. insults or maliciously expresses contempt of the Federal Republic of Germany or one of its states or its constitutional order; or

  2. insults the colours, flag, coat of arms or the anthem of the Federal Republic of Germany or one of its states shall be liable to imprisonment not exceeding three years or a fine.

If the project prevails, the European Union would be added to Federal Republic of Germany or one of its states.

About "Germany (or any other similar ex-nazi country)"

While many countries do not have any laws against the desecration of their national flag, such laws are not limited to "ex-nazi" countries. The Wikipedia article Flag_desecration lists many countries. Some of them fought against Nazi Germany, others were neutral during World War II or didn't even exist. Many laws go much further (e.g., by requiring people to actually show respect when the flag is displayed).

(If you're looking onto this from a US perspective, I would remind you of what happened to football player Kaepernick, simply because he chose to kneel when the national anthem was played.)

Background of § 90a

In journal article »Verunglimpfung des Staates und seiner Symbole« Eine Dokumentation zu § 90a StGB this law is traced back to the crime of lèse majesté during monarchic rule. In 1922, during the Weimar Republic and following a political assassination, a "Law for the Protection of the Republic" was promulgated for a duration of 5 years. This law was similar to the current § 90a. Between 1930 and 1932 there existed a second temporary law. In 1932, when Germany was already governed by means of Notverordnungen, even though the Nazis weren't at the power yet, a permanent §134 a StGB entered in force. This law was abolished in 1946 by the Allied Control Council (composed by representatives of the US, Soviet Union, UK and France).

However, in the context of the Cold War the Federal Republic of Germany essentially reinstated this law (under a different number) in 1951, supposedly to prevent that the masses can organize themselves under the "mask of nonviolence" in radical structures.

In the 1970s this law had been widely used against communist groups:

  • confiscation of books
  • prohibitions to distribute leaflets
  • censorship of political radio and TV advertisement
  • arrest, identification and apartment searches of paper deliverers or leaflet distributors

Today many people want this law to be abolished, others consider it a necessary tool to defend democracy ("streitbare, wehrhafte Demokratie").

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+100

What rationale does Germany .. have for banning the burning of the national flag?

The name of the law is "Disparagement of the State and its symbols" (§ 90a StGB) and part of it reads: Whoever publicly, at a meeting or by disseminating writings .. denigrates the colours, the flag, the coat of arms or the anthem of the Federal Republic of Germany or one of its countries, shall be punishable by imprisonment for up to three years or by a fine.

It's clearly a protection against disparagement of the State. While you can burn in private as many flags as you want, it's illegal to do it in public, even if the purpose would be purely artistic for example.

I guess the roots of this special kind of "censorship" are predating the Nazi time with the majestic insult during the monarchy time in Germany. During the Weimar Republic time there was a law "protection of the Republic" which reads a bit similar to the current law. During the Nazi time this law was extended and used to oppress political opponents. After the Nazi time this law was abolished as moral conviction law. However, it kind of came back in 1951 under the conservative government of K. Adenauer during the cold war time, most probably to defend itself / better persecute political extremism (from the left most probably). Indeed there have been quite a number of legal cases around this law, mostly related in connection with the left. It clashes somewhat with the Freedom of expression (§5 GG).

The rationale is that the reputation of the State is something special, protection worthy. The idea may be to make the State and the democracy more resilient, but by employing censorship if also defeats this purpose somewhat. It's surely seen very controversial. The idea may also be to protect people from assault on their democratic State or to avoid a dangerous poisoning of the political climate.

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  • One somewhat controversial issue in German jurisprudence is that a lot of the legal precedents and doctrines established during the Nazi regime on facially "apolitical" topics like property, contract and ordinary criminal law remain good law today and is still applied to modern cases. – ohwilleke Oct 4 '19 at 0:39
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There are certain limitations on free expression, which society deems worthwile, e.g. yelling "fire" in a crowded theater.

As there are no absolute truths, freedom and rights, each society decides on the rules to govern itself.

So what good and what bad does burning a flag do? Feel free to suggest more points in the comments.

The good

  • It does not harm people
  • The flag is disposed of

The bad

  • It may be offending to people, which come from the flag's country

So, it is up to each country/society to decide whether the bad justifies a ban. Naturally, different societies will come to different conclusions.

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  • I upovoted, thank you, and I do have a hard time trying to understand who downvoted, unless you have enough points to downvote yourself. As for "The bad", I do somehow understand if the reason for Germany banning the flag burning would be due to the 40's issues. Also, meaning that they are good people, having difficulties to decide how long they need to feel sorry for their past. So [no need to add] an addition line to "The bad" would be "It may offend compatriots who feel that their flag burning compatriot might hurt those whom their past (40's) compatriots did unbelievable bad things to". – Tuomo Oct 5 '19 at 14:08
  • @Tuomo I'am not sure, whether the ban on flag burning has anything to do with the "40's issues". All of those compatriots, who were involved in some way or another, did so under a different flag. The current flag (black-red-gold) was also in use in the Weimar Republic, when the Nazis came to power, they replaced the flag first with the old flag of the German Reich (black-white-red), and then they made the infamous swastika flag the official flag. – Dohn Joe Oct 7 '19 at 7:36

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