Resistance

GERMAR RUDOLF, RESISTANCE IS OBLIGATORYthe evil, or also at the stupid and the ones who recklessly or naively parrotothers? What about offenders who act out of persuasion? A partialdenial fulfills the offense of downplaying, decided the Federal SupremeCourt on 22 Dec. 2004, 15 if the perpetrator conceals the true weight ofthe historical facts, calculates downward the number of victims as opposedto the historically recognized extent of the mass murder, or questionsnot only marginal issues of the order of magnitude considered historicallyestablished – that is to say, due to knowledge considered verifiedup to now… That makes sense only at first sight, because nothingelse can be true here as elsewhere in science: The limits of knowledgeare never fixed, not even for the number of victims of Auschwitz, 16which has been officially reduced in the course of time from some fourmillion to one million and which may have been higher, but perhapsalso lower than that. 17 Who can set a mandatory margin in this field,who can set the limits of what is established? The offense defined byarticle 130, paragraph III, Penal Code raises such questions and manymore, which cannot be discussed here, though.Although the encompassing problem whether the offense of incitingthe masses can prevail over the constitutionally guaranteed freedom ofopinion also touches upon its paragraphs 1 ad 2, it is probably still solvablethere with an interpretation which does not impinge on freedom ofspeech in case of doubt. 18 Yet paragraph 3 is hit by this problem withfull vehemence: Freedom of opinion has the high value assigned to it bythe Federal Constitutional High Court in the Lüth verdict of 15 Jan.1958 19 – with downright imploring words! 20 – today not less than backthen.The Constitutional High Court has so far not taken an opportunity toevaluate the constitutionality of article 130, para. III, Penal Code: 21 remarkable,if considering the concerns which have been raised and areimposing themselves. †2. The Amendment of Paragraph 4It is pointless to evaluate whether this paragraph could be salvagedas constitutional even when interpreting its wording extremely restrictively.After all, the Secretary of Justice herself has put the legislature’sintention on record with her interpretive guidelines as quoted above and†308On 4 Nov. 2009 the German Federal Constitutional High Court has approved Art. 130, para.IV, German Penal Code as constitutional, see note 233; G.R.