The German Interior Ministry continues to defend its controversial and widely criticised plans to restrict the speech, travel and economic activity of political dissidents. The Federal Office for the Protection of the Constitution (BfV), our domestic intelligence service and political police, have sacrificed substantial popular regard in the face of this campaign. According to a poll published last month, a plurality of Germans believe that the BfV is being misused for political purposes. The sentiment is prominent across all parties, except of course for the Greens, who believe that all is well with the Federal Republic.
The creepy, dissolute and rodent-looking BfV chief, Thomas Haldenwang, has taken to the pages of the Frankfurter Allgemeine to defend the conduct of his office and his plans to shape the “thought and speech patterns” of ordinary people through official repression.
The thing about “freedom of expression,” Haldenwang explains, is that it “is not carte blanche for enemies of the constitution”.
Recently, public discourse has repeatedly featured headlines and articles calling the work of the Federal Office for the Protection of the Constitution (BfV) into question. There is talk of an “opinion police,” a “language police” and even a “Government security service”. They say the BfV discredits political opinions “on command” as extremist as soon as they depart from the social and political mainstream, or when they embark upon criticism of Government action or the work of the democratic parties.
One thing should be unmistakably clear: freedom of opinion prevails in Germany – and that is a good thing! Freedom of opinion is a fundamental element of our constitution and one of the greatest assets of our liberal democratic order. As such, it is also protected by the Office for the Protection of the Constitution.
“Freedom of opinion,” Haldenwang explains, is what “distinguishes a democracy from an autocracy or a dictatorship.” In the Federal Republic even “offensive, absurd and radical opinions” are protected.
Well, kind of:
[E]ven freedom of expression has its limits. The outermost boundaries are set by criminal law, for example with regard to punishable propaganda offences or incitement to hatred. Even within the limits of criminal law, however, expressions of opinion, despite their legality, can become relevant for constitutional protection. [emphasis mine, here and below]
In theory, you can think and say whatever you want in Germany, so long as what you think and say does not violate the law. Within the range of legal expression, however, there is a grey area that Haldenwang and his minders in the Interior Ministry get to define. If you enter this danger zone, you may end up inviting the unwelcome attention of the political police even though you have not broken any laws.
Put less charitably, there is clearly illegal speech on the one hand, and on the other hand there is speech which is alas not yet illegal, but which existing authorities will use all the administrative tools at their disposal to dissuade you from. Such speech, we might say, is pre-illegal, and only reluctantly permitted because the hurdles to banning it are too substantial.
Specifically, you become susceptible to surveillance and harassment by the BfV whenever you express opinions that suggest you are interested in “eliminat[ing] the free democratic order” of the Federal Republic. Your mere freedom of expression is “not a licence to evade observation and evaluation” by the political police if there are “factual indications” that your thought is tending in unconstitutional directions.
Unsurprisingly, the scope of what is “unconstitutional” in thought and speech turns out very wide indeed:
For example, if elements of our free democratic basic order are attacked, e.g. if the human dignity of members of certain social groups or political actors is violated, if permissible criticism and democratic protest escalates and turns into aggressive, systematic delegitimisation of state conduct (including calls for violence), when legitimate criticism and opinions turn into extremist agitation intended to shake the foundations of our democratic order and thus prepare the ground for unpeaceful and violent activities – such statements can constitute evidence of endeavours directed against the free democratic order.
As I posted last month, the BfV has been targeting political dissidents it deems guilty of “delegitimising” the state since 2021 – a concept that takes aim at a wide range of expression and that reminds one of defunct DDR laws against “defaming the state”. Here, Haldenwang quietly expands this concept, explaining that you may become a case for the BfV if your “permissible criticism” crosses some invisible boundary to become the “delegitimisation of state conduct”. Comparing the Federal Republic to the DDR is an example of delegitimising the state; comparing the behaviour of the BfV to the behaviour of the Stasi is presumably an example of delegitimising state conduct. The goal here is to make it effectively impossible to criticise the German Government for its antidemocratic and unconstitutional policies without drawing the attention of the BfV, because attacking our nominally democratic leaders for antidemocratic behaviour is the very definition of “delegitimisation”.
Otherwise, to understand how ominous this is, you must remember that the present political establishment in general, and the BfV and Haldenwang more specifically, exercise a total sovereignty of interpretation over everything you say. It doesn’t matter whether you intend to violate “the human dignity of members of certain social groups” with your statements, or even if this is a remotely defensible interpretation of your words. It only matters if the constitutional protectors decide you are guilty of doing so. Thus if our constitutional protectors decide that your statements are “intended” to call into question “our democratic order” or “prepare the ground for unpeaceful and violent activities”, you’re on the radar of the BfV, regardless of what you said or how you meant it. This is a licence to go after anyone saying anything our political leaders don’t like.
Haldenwang believes that “in the post-War history of our country, democracy has rarely been in such danger as it is now”. This is because “the number of extremists and the potential for extremism have been on the rise for years”, because “digitalisation and virtualisation” are helping bad people “spread their ideologies”, and because “authoritarian states” are propagating “disinformation” which “often meets with approval and applause from domestic organisations and actors”.
What Haldenwang is really terrified about, of course, are the upcoming elections for the EU Parliament and for the state parliaments of Brandenburg, Thüringen and Saxony. That is why we have to read so much in the press every day about “Right-wing extremism”, why the police are going after 17-year-old girls who post AfD Smurf videos to TikTok and investigating inflatable snowmen for fascism and why leading Green politicians are having ordinary people prosecuted for political satire. In the Federal Republic there is nothing so threatening to democracy as free and open democratic elections.
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