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Crime to speak for one side in a war – in which your country is not even fighting?

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NPR (Rachel Treisman) reports:

Two German states have banned the public display of the letter “Z”, which has become synonymous with support for Russia’s war in Ukraine.

Authorities in Bavaria and Lower Saxony said over the weekend that anyone who displays the symbol at public events or paints it on cars or buildings could face a fine or up to three years in prison, according to the site in English. Local reports. And a spokesperson for the Ministry of the Interior told reporters Monday that people across Germany who post the letter endorsing Russia’s aggression could face prosecution.

“Russia’s war of aggression against Ukraine is a criminal act, and anyone who publicly approves of this war of aggression may also face prosecution,” the spokesman told a news conference, according to Reuters….

Chapter 140 of the German criminal code recognizes “incitement to the crime of aggression” as an offence, according to Ukrainian news agency Ukrinform….

Announcing the decision, Bavarian Justice Minister Georg Eisenreich said freedom of thought “ends where criminal law begins”.

“The Bavarian public prosecutor’s office takes consistent action against people who publicly endorse aggressive warfare that violates international law,” he said, according to Ukrinform. “Russian President [Vladimir] Putin has launched a criminal war of aggression that is inflicting terrible suffering on the Ukrainian people, so the Bavarian justice system is watching closely.”

How can a democracy, which presumably must decide by democratic means what to do with the Russian-Ukrainian war, criminalize support for either side? I personally believe that Russia’s actions are unjustified; no doubt many Germans think the same, and perhaps even most. But it seems to me that those who support Russia should also have the right to express their opinions.

Indeed, I think people should be free even to speak out for the real enemies of a nation in times of war. Indeed, an argument for stopping a war is precisely the assertion that our enemies are right and we are wrong.

But here there is not even the excuse that “When a nation is at war, many things which could be said in time of peace are such an obstacle to its effort that their utterance will not be supported until the men will fight and whom no Court could consider protected by a constitutional right” (to quote a passage from Schenck v USA (1919) which American First Amendment law has probably since rejected). Germany is not at war. His soldiers do not fight. The question of which side Germany should be on (at this time, through non-military actions, such as sanctions) must be understood, in a democracy, as open to democratic debate.

I appreciate the argument that, given German history, Nazi advocacy can be properly restricted (or, given the history of other countries, Communist advocacy can be properly restricted). I disagree with this, in part because of the risk that deleting one speech type will cause other types to be deleted. But in any case, it seems – assuming the NPR coverage is correct – that this very risk has materialized here.