Resistance

GERMAR RUDOLF, RESISTANCE IS OBLIGATORYon that critical date how columns of cussing neo-Nazis ganged up infront of the Holocaust memorial in Berlin and marched through theBrandenburg Gate, it seemed clear that something had to happen to haltsuch activities. But what? A change of the right of assembly promisedrelief, although it was to be shored up with penal measures – by a renewedtightening of article 130 Penal Code. Although hate sermons,Holocaust denial as well as any use of Nazi symbols or slogans 9 hadlong since been prohibited, by now it was known that the “Neos” werenot only stupid and dull, but also clever and cunning and knew how toglibly slip through legal gaps; hence those had to be plugged. On 11Feb. 2005, the German Secretary of Justice introduced a bill and announcedthat the state had so far been reluctant to restrict freedom ofspeech and assembly due to their high priority, but it now had to closegaps – also as a signal to young people – among other things by a newparagraph to article 130 Penal Code, according to which punishmentwill be meted out against him “who publicly or during a gathering disturbspublic peace in a way injurious to the dignity of the victims byapproving, glorifying or justifying the National Socialist violent anddespotic rule.” 10 Glorification is also given if unjust conditions of theNational Socialist rule appear in a context of positive evaluation orwhen emphasis would be put on positive values, and prosecutable approvalcan also occur under reservation or by implication. Did thatjeopardize the core of several civil rights? Hasty debates about that ensuedwithin the government coalition, but already a month later the billpassed – in a slightly amended form – the final parliamentary debate. 12IV. Alien Element in a Liberal State under the Rule of Law?1. § 130 III German Penal CodeOne can already find grave doubts in the literature about the questionwhether any legally justifiable good in need of protection can befound in paragraph 3 of article 130 Penal Code (which had remainedunchanged this time).Is it the honor of the victims, public peace, the basic consensus of alldemocrats, a decent political climate, concerns of foreign policy, or historicaltruth? Penal law is certainly inept to take care of the latter – butall the other hypotheses can be challenged as well with compelling reasons.13 And what does approving mean, foremost also denying 14 anddownplaying – objectively and subjectively? Does this law aim only at307