Faeser’s approach may seem like a variation on a Captain ordering that “the beatings will continue until morale improves.” However, in Germany’s anti-free speech politics, it makes perfect sense. Faeser recently tried and failed to shut down a right-wing publication.
Conservative journalist David Bendels, editor-in-chief of the AfD-aligned DeutschlandKurier, lampooned Faeser by showing a meme of her holding a sign reading, “I hate free speech.” Deutschland-Kurier is aligned with the opposition conservative AfD party.
As if to prove her point, Faeser allegedly unleashed her office on Bendels and threatened him with a criminal prosecution for lampooning her views. The court has already imposed a fine, but according to some reports, jail time is possible.
There is little coverage of the story beyond a few conservative websites. It is, therefore, hard to confirm some key facts given the absence of coverage in the mainstream media. If true, this would seem a major story in using criminal laws to police parodies. I waited for days in the hopes of learning more about this controversy. Yet, there remains virtually no coverage.
The controversy offers an interesting context to explore how we address the problem of fake images and photos on the Internet. There are indeed good-faith concerns on both sides of such parodies.
If the accounts are accurate, the question is how politicians should respond to photo “fakes.” I understand Faeser’s objection if the picture is not marked as a fake or parody image. Ironically, it would be unthinkable for other politicians to hold such a sign. Yet, given Faeser’s history, some could easily conclude she would hold up such a sign with pride. It is “believable” for some familiar with the anti-free speech history of the German left and Faeser in particular.
The minister has an interest in responding to such pictures. The key issue is whether the photo or context makes clear that it is a spoof or satire. That can be difficult with a meme. It is certainly true that, as a public official, she has the ability to use the “bully pulpit” to respond to such parodies in the media. Nevertheless, there must be a recourse for even public officials to address faked images that create a false or damaging impression.
Some are claiming that the “I hate free speech” spoof is being prosecuted ironically as hate speech. That would be a dangerous approach since parody and humor are key areas of political speech.
While the accounts suggest an excessive response, the controversy does show how difficult such questions can be in drawing a line that protects free speech while also allowing for redress for defamation or false light violations.
In the United States, such cases are routinely addressed as civil matters. However, in many other countries, defamation is both a criminal and civil matter. I have long opposed the criminalization of defamation in countries like Italy.
In Hustler Magazine v. Falwell, 485 U.S. 46 (1988), the Supreme Court reversed a lower court’s judgment for intentional infliction of emotional distress against Hustler for a parody of Jerry Falwell, the founder of the Moral Majority and Liberty University in Lynchburg, Virginia.
The magazine marked a faux Campari ad (from a series on “My First Time) as an “ad parody — not to be taken seriously.” It also listed the ad on the table of contents as “Fiction; Ad and Personality Parody.” Nevertheless, it was a deeply offensive ad that portrayed Falwell talking about his “first time” having sex with his mother in an outhouse.
While Falwell won on the infliction of emotional distress claim at trial, he notably lost on the defamation claim because the Hustler parody could not “reasonably be understood as describing actual facts about [Falwell] or actual events in which [he] participated.” The United States Court of Appeals for the Fourth Circuit affirmed that verdict.
Writing for a unanimous Court, Chief Justice William H. Rehnquist reversed and rejected the notion that the outrageous character of the depiction could be a basis for liability. He noted that
“‘[o]utrageousness’ in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors’ tastes or views, or … their dislike of a particular expression. An ‘outrageousness’ standard thus runs afoul of our long-standing refusal to allow damages to be awarded because the speech in question may have an adverse emotional impact on the audience.”
The Court noted the importance of satire in political discourse.
Again, context was key in Falwell, and it is unclear what the context of the German photo was in conveying the photo as a satire or parody. A meme has less capacity for “context” or content disclaimers. However, if the reports of a criminal prosecution are accurate, the impact could be considerable on the diminishing residue of free speech in Germany.
We discussed how Germany is extending its criminalization of speech to the Internet. Germany imposed a legal regime that would allow fining social networks such as Facebook up to 500,000 euros ($522,000) for each day the platform leaves a “fake news” story up without deleting it. The country fined YouTube in an effort to force the company to remove views that the government considers disinformation on COVID-19.
Germany has also targeted Elon Musk for threatened prosecution if he does not reestablish censorship systems at X.
None of this, mind you, has put a dent in the ranks of actual fascists and haters. Neo-Nazis are holding massive rallies by adopting new symbols and coded words, while Germany arrested a man on a train because he had a Hitler ringtone on his phone.
The impact of these laws was evident in a recent poll of German citizens. Only 18% of Germans feel free to express their opinions in public. 59% of Germans did not even feel free expressing themselves in private among friends. And just 17% felt free to express themselves on the Internet.
The United States has ample protections against defamation and false light without the dangerous addition of criminal penalties. Moreover, the involvement of the government in monitoring and censoring such speech is chilling and unnecessary.
While this may seem biased in favor of our common law system, the controversy over his meme shows why (in my view) such systems are better suited for resolving such controversies.
Jonathan Turley is the Shapiro professor of public interest law at George Washington University and the author of “The Indispensable Right: Free Speech in an Age of Rage.”