In Part I of this series, we explored one of Germany‘s main hate speech laws, Volksverhetzung. Now let’s take a look at its bizarre sibling, another law that regulates speech in Germany: insult law, or Beleidigung. Whereas Volksverhetzung criminalizes speech deemed to incite hatred, Beleidigung criminalizes speech deemed as insulting. We already looked at some recent cases of Beleidigung law being used to repress anti-genocide protestors; however once we evaluate some other instances where this law has been applied and excavate its history, that strange German legal funk may fill our inflamed and enraged nostrils once again.

In 1960, Klaus Walter was arrested and sentenced to 9 months prison time (he served 2) for “insulting” Chancellor Adenauer. This insult consisted of holding up a poster from a British newspaper at a demonstration, which contained a cartoon of Adenaur wiping his crocodile tears with a handkerchief covered in Swastikas, while two high level associates, Kanzleramtschef Hans Globke and Theodor Oberländer, painted NS symbols on the walls. Walter, whose father had been arrested by the Nazis due to Communist and anti-fascist leanings, was pointing out the very real fact that Oberländer had been a major Nazi figure active on the Eastern front, while Globke, Adenauer’s right hand man, was a  “main architect of the legal backdrop [the Nuremberg Laws] behind which the persecution and murder of the Jews took place”. 

This is not to mention the fact that Globke had also used the Bundes Nachrichten Dienst or BND (Federal Intelligence Agency) to cover up his Nazi past, that Chancellor Adenauer used the BND to illegally spy on his political opponents, and that the BND itself was run by former high level SS and Gestapo members. Beleidigung laws conveniently attempted to repress this very critical outcry, revealing West Germany was primarily concerned not with denazifying the country, but with protecting the image and honor of its ruling class.

Beleidigung law was not only used to justify state oppression, but it was also used to justify sexual assault. As sexual assault criminal law underwent serious reforms in 1997, during the proceeding period, Beleidigung law was used in at least a few sexual assault criminal cases. These occasions show us invaluable insight into the underlying ideologies of insult law. 

In one sexual assault case in 1995, the violence was considered “personal need” and in another case in 1986,  “permissible courtship” under Beleidigung (Whitman 1309). Underlying these cases is the German belief that women are not honor-worthy, (stemming from 19th century notions of honor we will explore in Part III of this series) and therefore cannot be “insulted” by men through sexual assault. 

Although no longer used to prosecute sexual assault cases, insult law was recently used adjacent to one: a woman was sentenced to a weekend in prison for sending insults via Whatsapp to someone convicted of gang rape, while the convicted rapist avoided spending any time in prison himself. 

In legal scholar James Q. Whitman’s analysis: “What the law of insult does not aim to do is establish norms that will protect traditionally inferior groups, such as women, from treatment that is likely to reinforce their sense of vulnerability, inferiority, or exclusion. It asks only whether individual women have been the targets of an open and unambiguous display of personal contempt-of, in the words of our commentary, ‘the expression of the offender’s own lack of respect for the victim’” (1310). 

What a strange law indeed, you might wonder. I would respond, it only gets stranger. 

As previously mentioned, the roots of modern insult law lie in the same Prussian 18th century criminal code as Volksverhetzung. Where Volksverhetzung seems to protect the honor of the state from the pesky left and non-Aryans, insult law aims to protect the honor of certain individuals. 

Germany’s current, yes current, insult law, § 185 StGB, states : “The penalty for insult is imprisonment for a term not exceeding one year or a fine and, if the insult is committed publicly, in a meeting, by disseminating content (section 11 (3)) or by means of an assault, imprisonment for a term not exceeding two years or a fine.” 

Whitman clarifies: “The German law of insult criminalizes words, gestures, or behavior that show Missachtung or Nichtachtung, ‘disrespect or lack of respect’ for another. [….For example] the law of insult criminalizes a gesture called ‘the bird’: the tapping of the index finger on the forehead […] It can be a criminal offense in Germany to call another person a ‘jerk,’ or even to use the informal ‘du’ [informal word for ‘you’, rather than the formal ‘Sie’]”(1297-8) 

 In order to further understand Germany’s law of insult, we must dig deeper into its history: a misappropriation of Roman law, which criminalized insults (an insult being defined as a severe physical assault at the time), Beleidigung developed as a way of bringing deadly and utterly petty aristocratic German duels to court to prevent murder (Whitman 1316-17). The duel was originally developed in France, also rooted in practices of medieval knights, and became popularized in Germanic states by the end of the 16th century. Although outlawed to varying degrees since at least the 17th century, the duel nevertheless survived, and under various rulers was tolerated if not outright encouraged. By the end of the 19th century, the German duel had distinguished itself in its commitment to fatality. 

By that time, the duel had been extinct in Britain, and turned into a less deadly form of fencing in France, while in Germany, “the questionable but seldom questioned syllogism for satisfaction read: The greater the danger, the greater the honor; pistols are more dangerous than sabers; therefore pistols are more honorable.” ( McAleer 59) Under dueling code, there were three kinds of insults, which warranted, or rather necessitated for some, a formal challenge to death: 

1.einfache Beleidigung: “constituted by impoliteness or inconsiderate behavior”, 

2. cursing or name calling, including “Esel (jackass) or a Schwachkopf (imbecile)”, 

3. a blow, slap, or even gauntlet in the face (McAleer 47) 

There were different rules for each classification, but each one could be settled with death, and “German-language codes recommended that all third-level insults be settled with pistols” (McAleer 47-48). In Germany, being simply impolite used to be grounds for a murder.

Given the vast array of possible insults, and seeing as it was the duty of men of honor to fight unless, god-forbid, they be seen as cowards (McAleer 48), by the time of the 2nd Reich, Germany found itself with the most deadly and long-lasting dueling culture in Europe. Instead of rethinking the highly problematic German code of honor, which led to these deadly duels in the first place, Germans decided the best alternative to the duel was to formally criminalize breaches of honor, even if absurdly trite. Despite the formal implementation of insult law in the 19th century, the duel persisted with deadly force until at least WW1 and still continues in the form of the non-lethal student Mensur.  

Alas, in 2000, Whitman disappointingly concluded, “to this day, the definition of the sorts of substantive insults penalized under the law of insult is, to a startling extent, still drawn directly from old dueling norms.” (Whitman, 1334)  

Unfortunately but unsurprisingly, the Nazis played a critical role in shaping insult law. As we saw with Volksverhetzung, where Nazis democratized protection of the “peace of the [Aryan] people” rather than specific classes,  Nazis democratized Beleidigung to protect the honor, or as Whitman puts “the privilege of arrogance” of all people in the Aryan race —not just the aristocrats and upper class military officers protected by insult law in the 19th and early 20th centuries. However, insult law was not enough to restore Aryan honor, and Nazis even briefly reintroduced the duel in 1936. The Nazis also created precedent for “group insult”: the idea that a whole group could be insulted. This was used to prosecute a man overheard calling the SA and SS “scum” in a barbershop (Whitman 1328).

In the final analysis, insult law was primarily concerned with “compelling low-status persons to show respect to high-status ones.” (Whitman 1314), and given its modern usage, I argue it still is. Even though the Nazi “group insult” laws have been partially repurposed to protect Jewish people in certain circumstances, they seem to completely fail to protect, and perhaps even oppress, other non-Aryans, women (Whitman 1310)  and non-Zionist Jews as well. 

In the best case, insult law can allow oppressed peoples to bring insulters to court on an individual basis. However, in the most realistic evaluation, insult law continues to serve the white Christian ruling class. 

Ultimately,  in the brittle and wise words of Whitman: “All of this will inevitably lead Americans [or any human being, I would add] to wonder whether such a body of law can survive in a modern democratic society. Nevertheless, it survives.” (1312) 

After our analysis of both Beleidigung and Volksverhetzung laws, I can only pose the question, was Germany ever really a democratic society? 

Next up, in Part III, we’ll explore German Honor – the undercurrent of these two laws and perhaps contemporary German society itself.

© Jason Oberman, all rights reserved, 2025

Works Cited

• McAleer, Kevin. Dueling: The Cult of Honor in Fin-De-Siecle Germany. Princeton University Press, 1994.
• Whitman, James Q. “Enforcing Civility and respect: Three societies.” The Yale Law Journal, vol. 109, 2000, pp. 1279–1398

You can read part 1 of this article here. We plan to publish Part 3 on theleftberlin.com on Wednesday, April 2nd

Palestinian-American human rights lawyer Noura Erakat writes in a brilliant article that what is happening in the US against the Palestine solidarity movement is nothing more than the boomerang effect described by Aimé Césaire in his 1950 Discourse on Colonialism. The same thing she is arguing for can be applied to Europe, especially Germany. The violence of the European colony that is Israel comes back to Europe with all its discrimination and violence against the Palestinian people and its allies. And just as Germans mostly ignore and/or justify it there, they will ignore and/or justify it here as long as it is exercised against non-white bodies, as long as it does not touch them, while their government oversteps all democratic boundaries.

For decades, the German state and the German establishment have been repressing the Palestine solidarity movement. This has ranged from the firing of voices critical of Israel in the public media, to the banning of demonstrations such as the 75th anniversary of the Nakba in Berlin in May 2023, to unjustified arrests. Since October 2023, this has increased in all areas of public and social life and has reached worrying levels.

Demonstrations, associations, classes and educational events, as well as cultural and social centres, have been closed and banned over the past year. People have been fired for calling for a boycott of Zionist products, even the Mera25 candidate for the general elections, Melanie Schweizer, a former federal ministry employee, has been fired from her job for speaking out about the German state’s complicity in the genocide in Palestine. Conferences, lectures, plays and exhibitions have been cancelled. The use of any language other than German and English at demonstrations has been banned. Slogans and symbols have been criminalised. Thousands of people have been arrested at demonstrations and rallies. In Berlin alone, there are more than 4,000 cases waiting to be heard in court. Police have raided the homes of activists and later banned them from taking part in demonstrations or meetings. Activists have been doxed in reports in the public and private media. Excessive police forces are at demonstrations a common sight. They attack demonstrators, especially in Berlin, using things like non-reglamentary gloves, pepper spray, dogs and sometimes snipers on rooftops. People who survived the genocide in Gaza and managed to come here are being quickly deported. People who are not from the EU and people who are from the EU are getting letters from the immigration ministry. These letters tell them that they are being watched and that they might be sent back to their own country. Well-known activists such as Ghassan Abu Sitta, Yanis Varoufakis and Ali Abunimah have been banned from entering the country. Even the UN rapporteur for the occupied Palestinian territories, Francesca Albanese, has had problems carrying out her work in the country.

This has been done by the government and the leaders of some German federal states, who are moderate and right-wing. They have adopted the main ideas and rhetoric of the most rancid German nationalism. This is paving the way for the far-right. These measures, which are against freedom of speech, freedom of assembly, freedom of thought and academic freedom, many of which are against the country’s laws, are being justified by their Staatsräson, i.e. the staunch defence of Israel, and their supposed fight against antisemitism.Their reason of state has allowed the establishment and a section of the German population to finally be able to express ultra-nationalist sentiments, which were repressed after the Second World War, on the streets and on the internet. 

The link made between Israel and a unified Germany has allowed racist language to be used freely. It has led to people being defined as to whether they are the ‘real’ Germans, mainly white people, aka ‘bio-deutsche’. Those who are not fully German by blood but only by passport are seen as less German. Not only are mass deportations of migrants being planned, but also the withdrawal of German citizenship from dual citizens. They specifically mention that citizenship will be withdrawn from extremists and antisemites, i.e. anyone who criticises the capitalist status quo from the left or anyone who supports Palestine, while there is not a single mention of the extreme right. In this German way of thinking, there are clearly first and second class German citizens. This is very worrying because many of these second class Germans have been living in this country for generations, but if they do not support another state (Israel), they do not deserve to continue being German.

People who have been paying attention to what is happening in Germany should be worried about what is coming, as it is eerily similar to the worst of the last century: A country in full economic and moral crisis, longing for good times of the past. A State becoming more openly racist, accusing migrants of all its problems, excluding them from society, prosecuting and expelling them, taking away their nationality and sometimes even killing them or letting them be killed. A government that is increasingly warmongering and wants to turn its factories into arms factories. A country with a growing extreme right that has dragged all public discourse to extreme and dangerous positions. A large part of society and most of the state have taken off their mask of moderates and anti-racists, and are increasingly revanchist and punitivist against anyone who does not share what they consider to be their idea and reason of state.

One need only take a look at the reaction of all sorts of people, even from the so-called left, to the videos of police brutality in Berlin at this year’s Women’s Day demonstration. For example, the antisemitism commissioner of Brandenburg, Andreas Büttner, who belongs to the left-wing party Die Linke, justifying the beatings because the demonstrators did not follow the rules (like the aforementioned no marching, no Arabic, no slogans, etc…), i.e. the police can and, for some, should send people to hospital for demonstrating and saying “From the river to the sea” or “Intifada”.

After an election in which the hatred of minorities, which has found its highest expression since the antisemitism of the past, has been rewarded. The winner, Merz of the CDU, has made some of the most blatantly xenophobic speeches, especially against the Arab population, outside of the far-right Alternative for Germany, the second largest force. One can only expect that this picture will only get worse if society, which claims to oppose all this authoritarianism, does not react.

For make no mistake, the German state is fully aware of what it is doing. It is testing the anti-democratic limits of how far it can go before its population objects, and its population is for the most part insultingly inactive.  We are living the metaphor of the frog being slowly boiled alive, unnoticed, until it is too late to jump out of the pot and the atmosphere is too hot.

To this end, through its speeches and media, it is trying to keep its bio-German population in line by keeping the trauma of 7 October alive. Leading politicians continue to talk about mass rapes and dead babies, while ignoring the now official statements of former Israeli Defence Minister Yoav Gallant, who claimed that Israel preferred to kill its compatriots according to the Hannibal doctrine rather than let them be kidnapped so as not to have to negotiate the exchange of hostages. 

In Germany, from primary school onwards, it is taught that Israel’s existence is linked to that of Germany because of its responsibility for the extermination of the Jewish people in Europe in the last century. In fact, almost every city in Israel has one or more villages, towns or neighbourhoods twinnedwith Germany. So 7 October, which they keep comparing to the Holocaust, is also their trauma. Like the Holocaust (which is treated in Germany as something unique and unrepeatable, not as the second genocide committed by their country in the same century, after that of the Herero and Nama in what is now Namibia, and in which other peoples were also exterminated, including the Sinti and Roma, who are still ignored to this day), 7 October is completely decontextualised. In the news and in official statements, the attack on Israel came out of nowhere and was carried out by Islamist barbarians who, out of pure anti-Semitism, want to do away with what Hitler could not. So anything is justified to wipe out these “new Nazis” and their families.

While ceremonies are held as if the hostages and dead of 7 October were their hostages and dead. The victims of that day with dual German/Israeli citizenship are constantly talked about, while the Palestinian/German victims, whom the Foreign Ministry has not even mentioned after 16 months of genocide, are again ignored. Even in death, there are second-class German citizens.

This transfer of the trauma of the 7 October attack to the German population is being fed by over-exposing them to biased information about attacks in recent months committed by non-Bio-Germans, and by reporting on possible and worse jihadist attacks that could happen in this country, while ignoring those committed by right-wing Bio-Germans. Meanwhile, they ignore the danger from their own violent right-wing extremists, who are already organising and rearming, and who are part of their defence and security forces of the state and the police. This fear of an attack by the “other”, both in their proxy state of Israel and within their borders, leads to an irrational fear and total dehumanisation of millions of people, especially Arabs, both in the Middle East and in Germany.

Racist statements, which a few years ago would have caused at least some discontent in German society, are now mainstream. In the German parliament one hears statements from supposedly moderate politicians and politicians talking about the ‘poison of Islam’ that is contaminating Europe. These unchallenged statements are generalised to all Arabs and lead to racist and violent actions by the police, arbitrary arrests, loss of work and residence rights and finally the expulsion of people whose only crime is to defend the rights of the Palestinian people.

This disenfranchisement of a section of its population is largely ignored and/or encouraged by the white German population, while its government takes note of how far it can go. This divide and rule means that in the recent demonstrations against fascism and in the demonstrations called by the trade unions against the state cuts, the demonstrators and organisers excluded and barred from their demonstrations the pro-Palestinian bloc, which tried to point out that state fascism has already arrived for a part of the German population without Alternative for Germany being in power, and that part of the money from the cuts is being used to send arms to Israel and to arm to the teeth an increased German riot police.

Gradually, this loss of rights and freedoms will be experienced by a larger part of the population, as the leader of the party with the most votes in these elections, Merz (CDU), has already taken his first steps towards a more generalised authoritarianism, calling for a review of the status and funding of NGOs that have been critical of his party’s move towards more reactionary policies in recent months. Meanwhile, the Interior Ministry of the outgoing ‘moderate’ government has launched a website where citizens can anonymously report people who believe in conspiracy theories. The presentation of this snitching system explicitly mentions the denunciation of antisemitic theories, which in this country does not refer to the theories propagated by the extreme right that advocate the extermination of the Jewish people, but to anything related to the movement of solidarity with the Palestinian people and against the occupation, genocide and apartheid they are suffering.

In December 2023 in the COP28, the Colombian president Gustavo Petro stated that ‘What we are seeing in Gaza is a rehearsal of the future’. With this, Petro warns of the export of the violence exercised against the Palestinian population to any population in the global south that flees the consequences of the climate crisis caused by the West. He also warned that ‘Hitler is knocking on Europe’s door’. And the fact is that what we are seeing in Germany is a rehearsal for a revival of a play from the last century, a rehearsal of that same colonialist violence brought home that can lead once again to the expulsion, dispossession and murder of the so-called ‘other’. What we are seeing is fascism spreading through the ruins of the German rule of law.