Case Summary and Outcome

The German Federal Constitutional Court rejected the right-wing extremist party NPD’s request for an interim order to have their election posters put back up. In the run up to the European Parliamentary and local elections in May 2019, the NPD put up posters with the party’s emblem and the slogan “Widerstand – jetzt” (Resistance – Now) on one side, and the names of various German cities where assaults by “migrants” had been documented with the slogan  “Stoppt die Invasion: Migration tötet!” (Stop the Invasion: Migration Kills) on the other. The Saxon city of Zittau took down three of the posters finding them to constitute incitement of hatred under section 130 of the German Criminal Code. After the Administrative Court in Dresden and the Higher Administrative Court of Saxony rejected the NPD’s request for an interim order to have the city to put the posters back up, the NPD filed a request at the Federal Constitutional Court claiming an infringement of its right to freedom of expression under Art. 5 of the Basic Law. While the Court criticized the judgment of the Administrative Courts, it stated that the constitutionality of the posters would have to be determined in full proceedings.  In light of the circumstances, the Court balanced the competing rights against the potential consequences of putting the posters back up, and found that the city’s interest prevails over the NPD’s.

---

Facts

The applicant is the regional association of the German right-wing extremist party NPD. In light of the European Parliamentary and local elections in May 2019, the party put up various election posters. One of them showed the party’s emblem and the slogan “Widerstand – jetzt” (resistance – now) on one side, and the names of various German cities where assaults and homicides by “migrants” had been documented. The slogan on that side of the poster read “Stoppt die Invasion: Migration tötet!” (Stop the Invasion: Migration Kills).

The defendant, the Saxon city of Zittau, informed NPD on May 16th, 2019 that the city would take down three of the described posters because they constituted incitement of hatred according to section 130 (1) No. 2 of the German Criminal Code.

On May 20^th, the administrative court in Dresden declined the party’s request to issue an interim order to force the city to put the posters back up. The Court found that the poster constituted an attack on migrants’ dignity because it suggested that every migrant living in Germany could potentially commit a homicide. Moreover, the use of the word “invasion” implied aggressive behavior.

On May 23^rd, the Higher Administrative Court of Saxony rejected the party’s appeal.

NPD appealed to the Federal Constitutional Court for an interim order on the ground that their right to freedom of expression under Art. 5 I 1 of the German Basic Law had been infringed. The party argued that both Administrative Courts misjudged the scope of Art. 5 Basic Law and that the posters did not constitute incitement of hatred. They further argued that especially, in light of the elections and the impact posters can have in an election campaign that the Federal Constitutional Court should find that the political party’s interests outweighed any possible interests the city might have.

---

Decision Overview

On May 24^ththe Federal Constitutional Court rejected NPD’s request for an interim measure.

The Court first established that the right to freedom of expression as guaranteed under Art. 5 I 1 of the German Basic Law had to be kept in mind when evaluating whether the content printed on the posters constituted incitement to hatred under section 130 of the Criminal Code.

Article 5 I 1 of the German Basic Law reads:

(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.

Section 130 (1) No. 2 of the Criminal Code reads:

1. Whosoever, in a manner capable of disturbing the public peace […]
2. assaults the human dignity of others by insulting, maliciously maligning, or defaming segments of the population, shall be liable to imprisonment from three months to five years.

The Court then criticized the Administrative Courts by stating that the wording “migration kills” would not lead an objective person to believe that every migrant could potentially commit a homicide as argued in their decisions. Such reasoning disregarded the context of the slogan, namely the European Parliamentary and regional elections. As the posters were political speech during an election period, they pointed in an abstract way to the potential consequences of migration. The Constitutional Court found that the Administrative Courts failed to substantiate that the slogan constituted defamation of a segment of the population, namely migrants.

Nevertheless, the Court stated that the poster was questionable in light of the constitution. Those questions, however, could not be answered in an interim proceeding because the Court did not have the jurisdiction to make a final ruling. If the parties wanted clarity on the constitutionality of the content of the posters, they would have to wait for a full hearing and ruling. The Court in the present case could only weigh the rights at issue.

In its balancing, the Court stated that the use of political posters during election campaigns is highly important and is duly protected under the right to freedom of expression in political campaigns according to the Basic Law Art. 5 I 1 in connection with Art. 21 I 1 which protects political parties’ participation in the formation of the political will of the people.

By way of comparison, in a decision dating back to 1982 the Federal Constitutional Court ruled that in election campaigns Art. 21 I 1 of the Basic Law expands the right to freedom of expression because freedom of expression is the foundation of an open and free political process and election campaigns are not only part of this political process but intensify it.[1] In a different decision from 2009, the Court reaffirmed that election posters fall under the scope of Art. 21 I 1 in connection with Art. 5 I 1 of the Basic Law.

However, in the case at hand, the city only took down three posters in a city with more than 250,000 people. Thus, the impact of those three posters was relatively small and therefore, the consequences for the party could not be seen as severe.

The Court considered a potential scenario whereby if it ruled in favor of NPD, but the main proceedings ultimately found the posters violated section 130 of the Criminal Code, the City would have put unconstitutional posters back up, even for a short period of time.

The Court concluded that in light of the above circumstances, the balancing of the rights and consequences demanded a rejection of the party’s request. Therefore, the city did not have to put the three posters backup for the remainder of the election campaign.

[1] This decision was not cited by the Federal Constitutional Court in the case at hand but can be accessed here.

---