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(16,888 posts)
Tue Aug 15, 2017, 09:36 PM Aug 2017

Strafgesetzbuch Section 86a - Important reason why it exists. Time for the US to wake up.

While a majority of Americans are in shock right now and trying to digest what they are witnessing in the last several days with images of torches and nazi emblems, nazi salutes from Charlottesville, VA and the shocking response from Trump since then, imagine what is going through the minds of Holocaust survivors and anyone who has family who died at the hands of nazis or died fighting the nazis.

My family has members who bravely fought the Nazis and yes, some who died. I grew up keenly aware from both my German and Danish family why they died, what evil the Nazi's perpetrated and how it could never be allowed ever again. My family came to America and saw America as the "Land of the Free" and the country that liberated the world from the Nazi's and Nazism. Today, the ones who remember the War or those who died at the hands of Nazis or fighting the Nazis, would be in shock. I am in shock right now. My family and friends in Germany are in shock right now seeing the emblems of the Nazi's and the Nazi salutes being used in 2017 in America. And being defended by the President of the United States. And hearing that President state that the opposition is a moral equivalent or worse.

In Germany, the very symbols and emblems that were being paraded down the streets of Charlottesville, VA and the torch lit images of the nazi salute of stretched arms and the words of "Blood and Soil" (Blut und Boden) are forbidden in Germany and can result in not just arrest, but imprisonment for up to 3 years. That may seem "against freedom of speech" or extreme. I say it isn't extreme enough.

There is a reason it exists and the Germans understand all too well. Symbols and the evil meaning that they represent can destroy a society and kill people.

I believe these symbols, including the confederate flag and symbols of the Klu Klux Klan should be banned from being publicly displayed in the United States. I believe anyone who defends their use, or defends anyone who follows their hateful and evil beliefs is a Nazi and an enemy of our Nation, an enemy of humanity. I believe the US Congress should pass a law that bans these symbols and salutes from being used, similar to how the Germans have done in their country. Stop this evil from growing while we still can.

Today in Germany, Nazi emblems and other emblems and symbols of hate, Nazi salutes in written form, vocally, and even straight-extending the right arm as a saluting gesture (with or without the phrase), are illegal. It is a criminal offence punishable by up to three years of prison as per Strafgesetzbuch section 86a. Some exceptions in the usage for art, teaching and science is allowed.

This is my 10,000th post on the Democratic Underground. Never did I ever believe in my wildest dreams that I would be posting on this topic after watching the President of the United States defend people who use these symbols of hate and live by those symbols of hate and criticize the people who speak out against that hate.

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Strafgesetzbuch Section 86a - Important reason why it exists. Time for the US to wake up. (Original Post) Pachamama Aug 2017 OP
Very nice 10,000th leftstreet Aug 2017 #1
What happened bdamomma Aug 2017 #2
I agree with you. Maven Aug 2017 #3
I expressed this same sentiment here the other day stopbush Aug 2017 #4
i get huffy bora13 Aug 2017 #23
I agree -- it is AT BEST incitement obamanut2012 Aug 2017 #5
A brief lecture on the First Amendment Jim Lane Aug 2017 #7
I read not one word of that -- I neither want nor need your lecture obamanut2012 Aug 2017 #8
Uh, just whom do you think I was patronizing? Jim Lane Aug 2017 #10
+1 onenote Aug 2017 #11
I'm not completely satisfied that this is truly a settled question. Stonepounder Aug 2017 #17
You're right that it's not fully settled. There are always gray areas. Jim Lane Aug 2017 #34
I read it. Chellee Aug 2017 #22
Well I am over the first amendment then. Tumbulu Aug 2017 #24
Let me suggest a broader view of the history of the First Amendment. Jim Lane Aug 2017 #35
It really does not matter what I think about it Tumbulu Aug 2017 #37
I agree with you leanforward Aug 2017 #6
Excellent 10,000 Post burrowowl Aug 2017 #9
Great post. Thanks for the info. oasis Aug 2017 #12
When Hitler said "we lost the war; but shall win the peace," sandensea Aug 2017 #13
Please provide a source for that quote. n/t PoliticAverse Aug 2017 #27
I am Germany right now... a la izquierda Aug 2017 #14
And we are equally puzzled, but witnessing a phenomenon: lambchopp59 Aug 2017 #30
It seems to me that is has been going on for three decades Tumbulu Aug 2017 #38
Congrats and thank you for your 10,000th post! smirkymonkey Aug 2017 #15
Here is the problem with that approach marylandblue Aug 2017 #16
Section 86a does not ban specific symbols outright Lithos Aug 2017 #19
And yet far right white nationalist parties have more electoral success Germany than in the US funflower Aug 2017 #18
That's because we don't have a 2-party system in Germany Ezior Aug 2017 #36
Bless you and your family, and congrats on 10,000th post SWBTATTReg Aug 2017 #20
K&R... spanone Aug 2017 #21
I've long argued that this country needs a serious discussion about destructive propaganda Oak2004 Aug 2017 #25
Agree! Thanks for posting ! Tumbulu Aug 2017 #40
"I believe the US Congress should pass a law that bans these symbols and salutes from being used" PoliticAverse Aug 2017 #26
This situation raises some really difficult questions. The Velveteen Ocelot Aug 2017 #28
Agree! Tumbulu Aug 2017 #41
I sure agree with you about how very fast things in this country have gotten worse. PatrickforO Aug 2017 #29
WHISIS lambchopp59 Aug 2017 #31
There is a legal maxim: marybourg Aug 2017 #32
We can pass laws all day long Phoenix61 Aug 2017 #33
Thank you for making this your 10,000th post. MineralMan Aug 2017 #39


(63,993 posts)
2. What happened
Tue Aug 15, 2017, 09:49 PM
Aug 2017

today was disgusting from a FAKE president, he is out of control and he will destroy this country. He is giving his militia the go ahead. This is disgusting to those who gave their lives for freedom and democracy in WWII.

WTF!!!! I hate Trump he's looking more and more like a grand wizard.


(10,533 posts)
3. I agree with you.
Tue Aug 15, 2017, 09:52 PM
Aug 2017

Seeing certain rights as absolutes--particularly the right to promote hatred and the right to carry firearms--can have seriously dangerous and destructive effects on a republic. I think that countries such as Germany have placed limits on both of these activities because they act as guard rails that safeguard civil society. There is wisdom in it that is borne out of experience -- painful experience that told them that It Can Happen Here, did happen, and they are under no illusions that it could happen again. Now we see what happens without those guard rails and with immoral leaders in charge: freedoms can become weapons. Let's hope we get wise before it's too late, if it isn't already.


(24,404 posts)
4. I expressed this same sentiment here the other day
Tue Aug 15, 2017, 09:59 PM
Aug 2017

and was roundly ridiculed for offending the First Amendment.


(860 posts)
23. i get huffy
Wed Aug 16, 2017, 12:13 AM
Aug 2017

when people take a loose attempt at the free speech
part of the 1st amendment.

It only says that the govt. can't take away your right to free speech.

Says nothing about general talk amongst people.

I can say fuck you and the only thing you can do is ignore or respond somehow.


(26,207 posts)
5. I agree -- it is AT BEST incitement
Tue Aug 15, 2017, 10:09 PM
Aug 2017

I am not a Free Speech absolutist, and if crying FIRE in a crowded theater is illegal, how is this not?

Terrific post.


Jim Lane

(11,175 posts)
7. A brief lecture on the First Amendment
Tue Aug 15, 2017, 10:32 PM
Aug 2017

Consider two cases:
* A demagogue ranting at a crowd persuades them to storm a jail, overpower a handful of outnumbered LEOs, and seize and execute a despised prisoner. (This is how Joseph Smith, the founder of the LDS Church, actually died.)
* Someone writes a newspaper op-ed denouncing abortion as murder and calling for drastic restrictions on it. An unhinged person reads the op-ed and that's the final straw leading him to bomb a Planned Parenthood clinic.

In each case we have speech, we have criminal violence by someone who agrees with the speaker, and we have a causal connection between them. Should the two cases therefore be treated identically?

The answer, as it has developed in American law over the decades, is No. It has generally seemed reasonable to prohibit the speech in the first case. On the other hand, it has generally been thought that freedom of speech would be too greatly curtailed if "this might lead to violence at some point" were accepted as a sufficient basis for making the speech illegal.

The difference has been given different formulations, such as "a clear and present danger to public order." The general idea is that the danger must be imminent, and not speculative along the lines of "this might happen." Obviously this isn't a bright-line test. There could be a series of intermediate cases between the two I described, with the strength of the justification varying along a continuum, and there would be some where even judges who agree on the test to be applied disagree about whether this case meets it. Still, no one has come up with anything better.

The German law described in the OP wouldn't be a tough case. In the United States it would easily be deemed to go way too far in suppressing speech. If it somehow got to the Supreme Court, there would be a 9-0 decision striking down the law.

My personal belief is that our current First Amendment jurisprudence is, in this respect, fundamentally sound. There are probably quite a few people here who would disagree. I'm not going to bother trying to persuade them. I'm just trying to answer your question about the constitutionality of a law suppressing the use of Nazi (or Confederate) symbols.


Jim Lane

(11,175 posts)
10. Uh, just whom do you think I was patronizing?
Tue Aug 15, 2017, 10:40 PM
Aug 2017

My intention in calling my post a "lecture" was to poke fun at myself.

Anyway, although your decision not to read the post was based on a misunderstanding, it was probably the right decision.


(4,033 posts)
17. I'm not completely satisfied that this is truly a settled question.
Tue Aug 15, 2017, 11:45 PM
Aug 2017

There is a fine line between protected free speech and prohibited libel and/or incitement to violence.

For example, see Beauharnais v. Illinois:

Facts of the case:
Joseph Beauharnais, president of White Circle League, Inc., was arrested on January 7, 1950 for distributing leaflets on Chicago street corners. The leaflets called in part upon the mayor and aldermen of Chicago "to halt the further encroachment, harassment and invasion of white people…by the Negro." Beauharnais was charged with violating an Illinois law making it illegal to distribute any publication that "exposes the citizens of any race, color, creed or religion to contempt, derision, or obloquy." A jury found him guilty and he was fined $200. The Illinois Supreme Court affirmed his conviction.

Did Beuharnais' conviction under the Illinois statute violate his constitutional right to free speech under the First and Fourteenth Amendments?

No. In a 5 – 4 opinion authored by Justice Felix Frankfurter, the Court concluded that Beuharnais' speech amounted to libel and was therefore beyond constitutional protection. Citing the racial tensions of the day, the Court characterized Beuharnais' speech as provocative and rejected the argument that the Illinois statute could be easily abused, stating, "Every power may be abused, but the possibility of abuse is a poor reason for denying Illinois the power to adopt measures against criminal libels sanctioned by centuries of Anglo-American law."

"Beauharnais v. Illinois." Oyez, https://www.oyez.org/cases/1940-1955/343us250. Accessed 15 Aug. 2017.


Jim Lane

(11,175 posts)
34. You're right that it's not fully settled. There are always gray areas.
Wed Aug 16, 2017, 01:33 AM
Aug 2017
Beauharnais concerned primarily libel rather than imminent danger, but in each of those areas, it's no surprise that there are 5-4 decisions (like Beauharnais itself).

BTW, Beauharnais was decided more than 60 years ago. The overall trend since then has been toward stronger protection for free speech. I'll hazard a guess that, if the same facts came up today, the statute would be invalidated.


(6,293 posts)
24. Well I am over the first amendment then.
Wed Aug 16, 2017, 12:14 AM
Aug 2017

I see no value in it, and frankly think it has just been used by bigots and porn nuts to bully the rest of us around.

I have spent my life watching so called liberals defending hate and violence in speech and film and it is the one thing that I agree with conservatives about.

Not that it matters what I think. I just don't care to hear any more defense of it. It simply disgusts me.

Just like today's press conference.


Jim Lane

(11,175 posts)
35. Let me suggest a broader view of the history of the First Amendment.
Wed Aug 16, 2017, 01:44 AM
Aug 2017

You write that you "think it has just been used by bigots and porn nuts to bully the rest of us around." The protection for bigots is obviously on everyone's mind after the murder in Charlottesville, but free speech hasn't "just" been used for those people. Important cases have invoked the First Amendment to protect the free speech of socialists, union organizers, civil rights activists, Vietnam War protestors, and others.

There are also some cases that didn't even arise. Would Trump and Sessions like to enforce a prohibition on criticism of the President? I'm sure they would, and such laws have been enacted in the past. They don't hold back because of their principled commitment to an open society. They hold back because they know that any such law would be speedily held unconstitutional. Take away the First Amendment and watch what they do. Maybe you and I will be cellmates.


(6,293 posts)
37. It really does not matter what I think about it
Wed Aug 16, 2017, 10:01 AM
Aug 2017

But it reveals things about those who defend it.

I notice that aggressive types and billionaires ( Citizen United comes to mind) love defending it.

Porn nuts, misogynists, and racists seem to be the primary defenders of its current interpretation. All people who have not, as a group, been victims of systematic abuse for which the "speech" illicits PTSD reactions.


(1,077 posts)
6. I agree with you
Tue Aug 15, 2017, 10:14 PM
Aug 2017

What happened today has left me thoroughly disgusted. I am a loyal american in opposition to anything to do with dRumpf and anything to do with the aforementioned hatred groups.

That whinney b******d . . . . . . . . .


(21,785 posts)
13. When Hitler said "we lost the war; but shall win the peace,"
Tue Aug 15, 2017, 11:27 PM
Aug 2017

This regime (and the Bushes) is exactly what he meant.

a la izquierda

(11,803 posts)
14. I am Germany right now...
Tue Aug 15, 2017, 11:34 PM
Aug 2017

Trump headlines are on the billboards in all the metro stations. People here are very puzzled about what's happening with the US.


(2,809 posts)
30. And we are equally puzzled, but witnessing a phenomenon:
Wed Aug 16, 2017, 12:40 AM
Aug 2017

The Fox News effect. RW hate radio backlash. Thousands of Americans across vast stretches of the heartland of the U.S. are subjected to hatemongering daily now for over a decade. Some areas of the country there is no more intellectual alternative. The hatemongering airwaves attract those who tended to reject education and general intellectual pursuits in their youth, and prefer the 4th-grade level sound bytes, mostly falsehood, but easier to mentally digest than I.E. in-depth, intellectual journalism presented such as "Democracy Now" and other public broadcast programming. We've witnessed the phenomenon feeding on itself: intentional
"dumbing down" of the U.S. consumer and worker by the right wing, who in turns de-funds public intellectual broadcasting in favor of more hatemongering garbage that earns them votes.
And it is erupting in violence.
Visits to the Midwestern heartland of this country were truly frightening to me in recent years. I had to help care for my aging parents, get my father placed in a nursing home and home care for my later mother as well. While I was there, I saw anti_Obama bumperstickers, billboards and occasionally heard shockingly wild "anti-left-wing" talk being propagated. My father, once a reasonable person, died one hateful old pill addicted to Fox News.
The consumers of this primarily greed-justifying media often take the anti-socialism statements one step beyond what gets broadcast, and the "welfare queen" scenarios first spun by their king Reagan in the 1980's have finally, and violently spawned:


(6,293 posts)
38. It seems to me that is has been going on for three decades
Wed Aug 16, 2017, 10:07 AM
Aug 2017

And the urban liberals refused to take it seriously. But all of us who live and work in these areas have been verbally attacked - it's generational.

Fantastic post- thanks for articulating it so well!


(12,344 posts)
16. Here is the problem with that approach
Tue Aug 15, 2017, 11:45 PM
Aug 2017

Below is a link to a list of 178 symbols use by alt-right groups. Most don't have swastikas. Some are just boots. Some are numbers. And what about Pepe the frog? He started out as just a regular cartoon. No matter how many symbols you ban, it won't change their minds. These groups will find something else. If Germany has not returned to the horrors of the past, it is because they are far more vigilant about these groups than we are. On the other hand we are just now waking up from our comforting delusion that it can't happen here. Hopefully we have not woken up too late.



(26,404 posts)
19. Section 86a does not ban specific symbols outright
Tue Aug 15, 2017, 11:54 PM
Aug 2017

Rather it bans symbols used in a context which is construed as supporting one or more hate groups and ideologies. Over the years they have built up a large and living body of legal rulings which define what is and what is not allowed.

For instance a Swastika is banned as it connotes support for a hate group, but a crossed out Swastika (i.e., used in a context saying "no" to Nazism) is allowed.

I rather like that they consider the KKK's Solar Cross as a symbol of a hate group.


(3,033 posts)
18. And yet far right white nationalist parties have more electoral success Germany than in the US
Tue Aug 15, 2017, 11:48 PM
Aug 2017

Suppressing speech doesn't prevent bad ideas; it just drives them underground. The founders of the US were absolutely right in making the right to freedom of speech, thought and assembly central to our organizing documents, and I wouldn't call myself a liberal if wasn't willing to stand for those principles. I say be sure your children see and hear exactly what the Nazis of Charlottesville say and what they do, and then trust them to make the right decision.


(505 posts)
36. That's because we don't have a 2-party system in Germany
Wed Aug 16, 2017, 02:02 AM
Aug 2017

Far right white nationalists in the US don't vote for a nazi party because it would be dumb (wasting votes). They attempt to take over the Republican party instead, and it appears to be quite successful.

Hell, sometimes I think our current far-right party AfD is way more moderate than the average Republican. It's hard to tell though, since those far-right people never speak the truth to outsiders.


(2,140 posts)
25. I've long argued that this country needs a serious discussion about destructive propaganda
Wed Aug 16, 2017, 12:17 AM
Aug 2017

Not just Nazi symbols, but (actual) fake news (whether Russian sponsored or sponsored by a rich Australian asshole), the destructive subtext of all too many commercials, even nonpolitical commercials, etc.

Propaganda is something I've studied, and it is not an innocuous free exchange of ideas. It is not honest free speech, but manipulation. Unless you recognize it when it happens, and switch on your analytical mind and analyze it, it will slip past your rational mind, undetected, and it will affect you in some manner.

Outlawing all speech intended to persuade is inappropriate. But treating all speech (symbols included) as if it was the neutral exchange of ideas is also problematic, when so much speech does its level best to make sure that you do not think about its content. Part of the answer is to get back to the business of educating people about propaganda. But it is probably equally important to outlaw, or at least hold civilly liable for damages, hate propaganda and intentional deception.


(26,366 posts)
26. "I believe the US Congress should pass a law that bans these symbols and salutes from being used"
Wed Aug 16, 2017, 12:21 AM
Aug 2017

such a law would run afoul of long established Supreme Court constitutional precedent.

The Velveteen Ocelot

(116,096 posts)
28. This situation raises some really difficult questions.
Wed Aug 16, 2017, 12:29 AM
Aug 2017

In general I have always been pretty much a First Amendment absolutist - but after the events of the weekend I'm beginning to think one could argue that displays of Nazi and related symbols are so inherently inciteful that they don't deserve free speech protection, at least when used in connection with rallies and demonstrations. I know Brandenburg v. Ohio and other Supreme Court cases hold that for expression to be suppressed there must be an immediate threat of violence or incitement to violence; and there's also the argument that suppressing one kind of symbol or speech makes it too easy to justify suppressing other kinds of symbols or speech - but maybe, in this unique case, the Germans have it right. They learned the hard way, and maybe we don't want to learn the same lesson the same way they did. If a symbol has no other purpose than to encourage or incite hate and violence, should it be afforded First Amendment protection at all?


(14,613 posts)
29. I sure agree with you about how very fast things in this country have gotten worse.
Wed Aug 16, 2017, 12:34 AM
Aug 2017

But we cannot ever allow these nazis to exercise power in our political process, or the Russians, for that matter.

3 million more people voted for Clinton and if she was in the White House, there would be sanity.

We've got to get Trump out of the White House, and the radical libertarians out of the Senate and House.

We need to overturn Citizens United, and bring back the Fairness Doctrine.

We need to uphold net neutrality.

We have to get rid of the electoral college (check out National Popular Vote in your state).

And finally, all of us need to speak out and oppose these nazis and ku kluxers every step of the way. They must never go unchallenged.


(2,809 posts)
Wed Aug 16, 2017, 12:48 AM
Aug 2017

Created from the ripples of the growing and exacerbated hatemongering media effect.
Erupting in violence and rage.
Unable to recognize or remember that most of these goon's grandparents probably immigrated here to escape similar past atrocities.
I would relish the opportunity to sit every one of these hatemongers down in front of the Statue of Liberty and have them explain, exactly, which portion of the words inscribed there they fail to comprehend.


(17,038 posts)
33. We can pass laws all day long
Wed Aug 16, 2017, 12:51 AM
Aug 2017

or we can make it so socially unacceptable that people just don't engage in that behavior. We can call them out in person and on the Internet. We can notify their employers. We can camp out in front of their home. We can hound them to the very gates of hell and make sure they stay there this time.


(146,364 posts)
39. Thank you for making this your 10,000th post.
Wed Aug 16, 2017, 10:10 AM
Aug 2017

It is a memorable one. We need to remember the result of the last time Nazis gained power. We need to stop such things before it happens again.

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