[edit: typo]
http://www.nrc.nl/next/2016/01/20/u-twittert-wel-heel-veel-z...
Note that this is not the same as hate speech which will lend you in court and get you fined or worst.
If they're saying, "This is a polite, non-official notice that if you keep saying stuff like this, you are going to face unofficial heat from the government, in ways that you can't prove is because you're saying this stuff", well, that's not appropriate for a free society.
Lars Vilks is another Swedish artist. He is not being hunted by a police force, but by private, less rulebound actors. He can no longer live on a fixed address, and travels under constant police protection.
What a glorious time for free speech.
Insults were always a crime in Germany. They are even more or less explicitly mentioned (“honor” is mentioned) as an exception in the freedom of speech article in the German constitution. (One interesting tidbit: there are no such explicit exceptions for art, i.e. art is allowed to do everything. Of course that is not totally true. As soon as two or more basic rights collide judges have to decide which one wins out and how different basic rights have to be balanced. Law is not an algorithm, it is a living, breathing thing with a certain spirit, filled with life by the people living with it, applying it and interpreting it.)
This particular law merely names a higher punishment – and requires the German government to allow prosecution.
If you think you have been insulted you always have to make a criminal complaint. Without a criminal complaint there is no prosecution (unlike with, say, a robbery, where it doesn’t matter whether you make a criminal complaint, the robbers can be convicted either way). That applies to everyone.
Erdogan actually made a criminal complaint (one that doesn’t require the permission of the German government to go ahead), too, as well as this criminal complaint that does require the government’s permission. So there would have been some prosecution and maybe even a court case either way the German government had decided, just with a potentially slightly lower punishment.
I think it will be interesting to see how this case turns out … but I would be wary of identifying any trend. In general I would argue that the German constitutional court has again and again emphasized the importance of freedom of speech as a constituent element of democracies and has also, over the years, given the right wider and wider latitude and more teeth, meaning not everything that might, at first blush, sound like an insult actually is an insult. But the exception exists, sure, and always has.
There is also no doubt that what the comic said is insulting content. It was explicitly named as such and that’s pretty uncontroversial … the constitutionally much more interesting question is whether the context in which the insults were packaged is enough to restore the freedom of speech. I personally think it should be and I hope that judges will decide that way … but it’s a honestly tricky question.
I mean, one thing is for sure: Simple disclaimers (“Saying the following would be illegal: …”) are not enough. The law is not stupid … but we are not talking about simple disclaimers here.
This is just unjustifiable. Even worse, it's being done because Merkel needs favors from Erdogan. Imagine if George W. Bush had demanded that Merkel bring prosecutions for some of the more outrageous things people said about him. Would you have been okay with that?
Not even the indemnity afforded to members of parliament speaking parliament covers libellous insults - it's the only exception.
So what you're saying is: "It's okay to throw someone in jail for mocking a politician if it benefits you politically."
It is pretty impressive though, that you're able to make it sound so nice and harmless.
Hopefully one day the laws will be coded in PROLOG and open sourced. Then we can use computers to reason and decide about it.
That's things getting worse.
Pardons are a vital check on the justice system. I don't know all the details, and this might be a lower level judgment. But, if she had the power and said no, then that's a terrible sign regardless of the words out of her mouth. On the other hand if the government gave up the right to pardon that's also terrible.
If these people are convicted, then it might be reasonable for her to pardon them after the facts have been documented by the court.
In this case it is not about a pardon, but about an archaic law that requires consent from the government before prosecution, allowing the government to prevent someone from having their case heard based on political considerations.
Remember, right now today he is being penalized for saying something people in power did not want said. That's a bad thing.
Merkel even specifically said that they want to abolish that law. They didn't decide based on the merit of the claim but only based on principle (no matter what that law says, independent courts should decide).
Wait no, that's not true at all. Being forced to go to a trial is being deprived of your liberty while your there. Even just waiting for that day is highly stressful.
He would have been prosecuted anyway. If the government hadn't greenlight it under that law it would run under the label of the general insult law.
In practice this decision shouldn't have changed anything for him. It just sent a message: "In Germany the courts are independent. We won't interfere, even if we could."
This is someone not taking a stand for justice when they could. They had the power and option to make the right choice and they chose the politically expedient one.
This is worse than "I was only following orders" this is actively choosing the wrong thing.
There's even an argument that in this instance the less just course of action might be a powerful politician stepping into thwart the usual judicial process and signalling to the wider world that Western democrats, like Turkish autocrats, don't see anything wrong with subordinating the judiciary to executive fiat when a particular case allows them to step in.
The judiciary's role is to follow the rules as written, this is balanced by those who write the laws on one end, and those who can issue pardons when things go off the rails. Independent Judiciary means their outcomes are not changed behind the scenes, a public pardon has nothing to do with this.
I've suggested that it's rather hard to sustain the argument that a prosecutor and jury trial represents a "less just" way of deciding something than a political leader intervening to tell the judiciary she will be making the decision for them in this instance. Especially when reporting suggests that rescinding the bill via the accepted constitutional process for legislative change as she's said she intended to do would make it impossible for a sentence to be carried out in the unlikely event of a court deciding to convict anyway.
Similarly, I don't think it's possible to argue that the decision of whether to prosecute or not resting with the head of state is compatible with the concept of an independent judiciary (whether the outcome is changed behind the scenes or publicly is a tangential point)
To be clear, she's declined to use a special executive privilege written into this archaic bad law to give the state power to intervene if it's in their foreign policy interest, not a pardoning system introduced as a constitutional check and balance. I'm sure the German legal system has been designed with plenty of actual checks and balances.
Nobody gets a free pass for failing to support a basic human right. People should be demanding she steps down right fucking now.
Ironically, he's apparently far more likely to be successfully prosecuted under Germany's regular defamation law which Merkel has no power to intervene in whatsoever. Although judging from the tone of your previous comments I suppose you'll still find a way for that to be Merkel's fault...
The only reasons we are debating this at all is that nobody likes Erdogan and that the insult was offered by a comedian.
We're debating it because most of HN is in the United States, where people regularly go around saying far worse things about our President than calling him a "goat."
It's satire, about a political public figure. It's hard to find speech much more protected than that.
Europe does not have free speech. In myriad ways there are restrictions on speech, from prosecution of satire to the reprehensible "Right to be Forgotten" law.
Nonsense. Of course it does. https://en.wikipedia.org/wiki/Article_10_of_the_European_Con... . Eg see [0] for a (successful) ECtHR case in France under A.10 relating to a similar no-insulting-heads-of-state law.
My guess it the only reason this one is still on the books is that it's almost never enforced (though IANAL). The ECHR doesn't examine laws proactively - someone has to bring a case - but then, that's the same as the US (and in the US it's apparently not unusual for legislators to attempt to pass laws they know will be overturned once actually used[1]...)
> In myriad ways there are restrictions on speech
Sure. Same as in the US: [2]. The restrictions in that article seem broadly in the same areas as those in A.10(2).
I'm not denying that US free speech protection is stronger than Europe - lines are drawn in a slightly different place: the US has stronger protection of free speech, Europe has stronger protection of privacy, among other things. But this is a long way from "Europe does not have free speech".
[0] https://www.article19.org/resources.php/resource/2315/en/col...
[1] http://www.mediaite.com/online/tennessee-gov-vetoes-nakedly-...
[2] https://en.wikipedia.org/wiki/United_States_free_speech_exce...
Well, to be pedantic, courts would probably apply more protections to direct political criticism than to mockery of a political figure him/herself. That is, you would receive more protection for: a) "This is a stupid policy that will harm public welfare" than b) "politician X looks like a monkey". But it's close.
O wouldn't put that in the same category as speech restrictions....
I am not a lawyer though, so take my post for what it's worth.
First, there is the case where we're talking (writing actually) about a person who is not reasonably considered a public figure--just a normal person. In this case the person would have to demonstrate that we wrote something about them that:
1. Caused actual damages to them (e.g. Caused them to lose a job, have their house burned down by an angry mob, etc.) 2. Was false
Writing that Joe Bob embezzles money while high on cocaine might result in him getting fired. Perfectly fine thing to write, assuming it's true. But libel if false and it loses him his job.
Justin Beiber and President Obama, on the other hand have both reasonably sought the limelight and would be considered public figures. For them to win a libel case, they would need to pass another hurdle and prove that what we wrote had malicious intent (i.e. that we expected damages to result from our false, damaging written statements).
To prove the third part is almost impossible. Public figures pretty much never expect to win libel cases.
At least, this is what I learned as an undergrad in a journalism law course.
But, the statement does need to be such that that a reasonable person might believe it to be true.
I've seen people call Obama a monkey, the anti christ, dumbass, marxist, etc.
That was on national TV
Freedom of speech is core to the American political system, tbh I am quite surprised and disappointed to find out Germany is so regressive on speech.
For Merkel to personally get involved and say that the guy should be prosecuted is a hit against freedom of speech in germany, regardless of the outcome.
In this case Merkel was dealt bad cards: A law that should have been removed a long time ago puts the issue on her table. If she had opted to deny consent, it would have been a blow to the principles of separation of powers, the very thing many European governments - including Germany - are criticizing Poland, Hungary and Turkey for violating right now. It would have made her a total hypocrite.
So she has opted to stay out, and taken the opportunity to raise the issue of removing this paragraph.
I wouldnt have come to the same conclusion as Merkel.
And that's exactly as it should be. Free citizens of a free nation have every right to insult anyone they wish.
Anyway - Cameron was accused seriously to have received oral sex by the vehicle of a roasted pig just a month ago - and he did the unthinkable - shrug it off. No one was prosecuted in Germany. and i am sure their tabloids reported it.
It of course helped that most people - including those of us who very much would have loved for it to blow up much more than it did - realised that Lord Ashcroft very much had an axe to grind.
Cameron was "insulted" by a whole slew of people that way, considering all the attention the topic got. Erdogan has a single target to go after, legally speaking. And the applicable laws in both cases differ substantially, too.
The deliberation between these freedoms is a matter of the political culture of a society. In Germany the opinion is shifting, and maybe not for the better.
Böhmermanns reaction was... and I am paraphrasing here: "What? You think this was insulting??? Mr. Erdogan, I can show you what an insult looks like, and german courts would regard it as insult:" (... and on this point in the show comes the poem...)
So... was the poem insulting, disgraceful and racist? Sure, in my oponion yes. But you can't look at it without the context, the whole show was trying to make.
It is like comparing Trevor Noah stating on the Daily Show that "of course we all know, Mexicans are racists and we need a wall" vs Trump saying the same thing. The first is comparable to what Böhmerman did (attacking racists, while simultaneously attacking Erdogan on free speech issues re:extra-3), while the later is actually racist slurs. Context matters.
Some might find this humor tasteless and insulting, but in my opinion this is covered by freedom of speech.
So are laws against blasphemy, witchcraft, etc. That doesn't make them at all legitimate in the modern world.
If they did, probably every civil rights movement in the West could have been made illegal simply by the government declaring that the speech is not valuable. Fuck that.
Then why cite the age of a law like them as evidence of the law's legitimacy?
> Though I still see no value in allowing people to call other people "goat f*rs" for sake of a political argument.
That places you in the very dangerous position of deciding what's a valid political argument and what isn't.
It hasn't been a problem, because normally, nations which have the respect of the German state to require such prosecution know better than to use it. On the other hand, accusing foreign heads of states of fucking goat on public television isn't exactly something people expected.
Erdogan has ensured that the oppression of his media will stay in European media for months.
>the screws are being tightened on free expression over much of Western Europe these days, not least as concerns potential offense towards a certain easily offended religion
> bayesian_horse: Actually, laws against defamation and insults are very old.
> ceejayoz: So are other laws. So what? [paraphrased]
https://news.ycombinator.com/item?id=11504575
> ceejayoz 3 hours ago | [-]
> So are laws against blasphemy, witchcraft, etc.
~"That's not an insult, this is an insult: &@##$ @#$@#$."
He said, "&@##$ @#$@#$"! Burn him!
When in context the actual insult was said before then.
In France insults are usually allowed when it's a parodic context (such as in a play, a TV show, a movie or the like).
Freedom of speech doesn't mean other people are not allowed to criticize you. And if your opinions are intentionally offending other people, you just have to expect some intentional offenses in return...
https://en.wikipedia.org/wiki/Wisdom_of_repugnance
Of course, intentional insults devoid of content are merely https://en.wikipedia.org/wiki/Ad_hominem, but it is important to recognize the difference.
Discussing something rationally requires having a thick skin.
Screws are not being tightened on freedom of expression on any real sense. The German law in question has nothing to do with religious insult, and ECHR Article 10 explicitly protects freedom of expression.
More importantly, it is not the place of the Chancellor to decide whether or not the law has been violated. That's the last thing that we want.
The original Bloomberg article has Merkel saying she had no intention of interfering in a prosecution brought under an ancient law about insulting heads of states, but actually intended to scrap the law so it couldn't be used in future. Which apart from suggesting that German speech laws are getting more permissive rather than less is pretty much an endorsement of the view that Erdogan - and presumably other Muslim heads of state - is a perfectly legitimate target for satire
mind you, you also get in a lot of trouble for promoting nazism ("wiederbetätigung"). see here, austria, 5 convictions for up to 22 months: http://diepresse.com/home/panorama/oesterreich/4947913/Funf-...
so?
For science, of course.
[1] Or semi-clueful child for that matter.
EDIT: I should say, my point is: Given that the actual number of people who fuck goats is miniscule, but probably not zero, the "accusation" is a priori so laughable as to NOT constitute defamation in any reasonable sense. (Hopefully the courts will agree, but it's ridiculous that the prosecution is even allowed to go forward.)
How is it different from a generic insult?
Is it akin to calling black people monkeys? (As obviously ludicrous as that is.)
(Btw, according to QI the statistic for, uhm, "having sex" with a chicken in Iowa/USA was actually something like 1 in 6.)
From what I can tell, he's not being charged under defamation law, so I don't think that's very relevant. It's an old law that criminalizes "insulting a foreign head of state".
Let's not mince words here: it's fucking goats (or Ziegen ficken originally).
Just like you wouldn't be offended by racial slurs not referring to your particular race.
> Just like you wouldn't be offended by racial slurs not referring to your particular race.
Personally, I'm not offended by racial slurs referring to my race, but then I was born lucky (white, male), so I probably don't appreciate what it's like to be a minority...
... but is Erdogan from a minority?
(I must confess I know very little about Erdogan, but most of the media I read portray him as just a few inches short of a megalomaniacal dictator.)
EDIT: I find it interesting to contemplate Erdogan's reaction to this compared to the (hypothetical) way, say, Obama would have reacted to this. (Not a US-ian, just for the record.)
Most people think it's dumb, but don't misrepresent it.