Legal expert on controversial election campaigns: »The› III. Weg ‹consciously tests limits in order to stir up fear«

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»Targeted provocations«

Photo: Sebastian Willnow / dpa

SPIEGEL:

Professor Schönberger, the right-wing extremist splinter party »The III.

Weg «caused a sensation with attacks on established parties and their top staff.

Are the actions legally in order?

Schönberger:

To anticipate it: no.

However, it is difficult to assess in detail.

If only because this party consciously tries to sound out the legal limits.

And because this whole area of ​​the election campaign is barely regulated, apart from certain things such as party finances or extreme cases, which are then also relevant under criminal law.

SPIEGEL:

Isn't an election poster with the slogan »Hang the Greens« not an extreme case?

In Bavaria, the police put down such posters because of the initial suspicion of "public calls for criminal offenses".

Schönberger:

Of course, criminal law forms an extreme limit.

But even when determining what is punishable, one has to be very careful from a constitutional point of view, especially when it comes to expressing opinions.

Because criminality does not only mean that you are not allowed to make a certain statement, but that you are even punished for it.

Freedom of expression, however, is a very central, elementary legal asset in a democracy.

That is why criminal law can only be applied within narrow limits.

SPIEGEL:

But really that tight?

Schönberger:

Especially when it comes to ambiguous statements, the Federal Constitutional Court said: Against the background of criminal law, you have to look at whether there is a meaning that is still permissible and then use it as a basis.

SPIEGEL:

And which one could this be?

Schönberger:

On these election posters you can find the addition, albeit in small print: "Make our national revolutionary movement known in town and country by advertising in our party colors!" Hang the Greens «thinks. Especially since it also contradicts the logic of an election poster to call for more posters to be hung in one's own party color - that is not their function, the normal viewer does not even have these posters available. But it creates an ambiguity that can be brought into the field in favor of the party. And the party then argued in exactly the same way in order to defend itself against a ban on these posters by the city of Zwickau.

SPIEGEL:

And it was successful before the Chemnitz Administrative Court - the court only demanded that the posters be hung 100 meters away from posters by the Greens.

The Saxon Higher Administrative Court has now decided that the posters have to be taken down.

How do you see it

Schönberger:

I was not convinced by the administrative court's decision.

It is of course always difficult to decide in an urgent procedure how far freedom of expression can go.

However, the Higher Administrative Court was of the opinion that hatred is incited here, and that the addition in a significantly smaller font size does not change anything.

I am glad that the Higher Administrative Court has now come to this conclusion.

SPIEGEL:

The district court in Munich I also banned the public use of these posters two days ago, at the request of the federal office of the Greens.

Schönberger:

In legal terms, it was about a completely different line: the personal rights of those affected, here the Greens, as a party. This is a recent development that has been around for several years, that not only natural persons, but also political parties are granted a right of personality - and thus corresponding rights of defense if this is violated. So this is not about administrative action or punishment, but about a defensive claim by one party against another. The problem is thus solved at this civil law level and thus before a local or regional court, via a so-called injunction. And when it comes to such an injunction, according to the case law of the Federal Constitutional Court, ambiguous statements must be based on the meaning,which violates the rights of the data subject the most. So just the other way around than in criminal law. That means: You can demand of those who express themselves that they express themselves so clearly in the future that it remains clearly within the scope of what is permissible - and refrains from anything that can also be understood as an unlawful attack.

"Protection of the foundations of our coexistence"

SPIEGEL:

And that was enough to get you to such an injunction? '

Schönberger:

Yes.

And I think that's absolutely right.

This slogan is not just a tasteless provocation, the »III.

Weg «deliberately tests limits here in order to stir up a feeling of fear and insecurity in the population.

Here fear is played with the threat of violence - although it is actually more than a "game", more of a kindling.

Here the peaceful coexistence is called into question, as it is the basis of our democracy.

SPIEGEL:

The satirical party "The Party" reacted to this and hung up posters: "Kill Nazis" or "A Nazi could hang here".

How do you judge that?

Schönberger:

That is also close to the limit, but, I would say, still within the range of what is permitted.

In the case of the "party" it is more indirect, not as demanding; besides, it was clearly a satirical reaction to these other posters.

The Chemnitz Administrative Court accepted that too a few days later - quite rightly, I think.

SPIEGEL:

The »The III.

Weg «also provoked last weekend in Würzburg, with three blood-stained corpse dolls behind which large portraits of Olaf Scholz (SPD), Annalena Baerbock (Greens) and Armin Laschet (CDU) were placed.

How do you judge that?

Schönberger:

It is absolutely clear that, at least for the average observer, it seems that these are supposed to be the - symbolic - corpses of these top candidates.

Here, too, it is about a climate of fear, for the population, but also for our political personnel.

And here, too, one could again bring personality rights into the field.

Sigmar Gabriel (SPD) succeeded a few years ago in preventing the further sale of miniature gallows on which his name was supposed to be dangling.

SPIEGEL:

Can the city of Würzburg be reproached for not prohibiting this in advance?

Schönberger:

No.

The perfidious thing is that the party registered the action with the city, but only pointed out that portraits of politicians might be placed next to the puppets - and explicitly referred to an assassination attempt on three people a few months ago practically the same place.

In fact, the politician portraits were then placed directly behind the corpse dolls and thus made a completely different statement.

The fact that there was a truck behind it with a large banner "Reserved for traitors" did the rest.

SPIEGEL:

Should the police have intervened during the action?

Schönberger:

That would have been difficult too.

To dissolve the assembly as a whole would have been a very serious encroachment on the freedom of assembly.

One could possibly have asked the organizers to place the pictures next to the dolls, as has been announced.

But that's always easy to say in retrospect.

However, I think it is right that the public prosecutor's office is having the incident re-examined, with a view to incitement to hatred and public incitement to criminal offenses.

Even if I'm afraid that it won't turn out much.

Unfortunately, you cannot prevent such provocations, you can only react to them.

Nevertheless, it is good that that is what happens in the end.