Definition and significance of ‘anti-constitutional propaganda’
The term ‘anti-constitutional propaganda’ refers to actions, statements, or publications directed against the free and democratic basic order of the Federal Republic of Germany, with the objective of abolishing or undermining it. The term includes both ideological and practical attacks on the constitutional order and is especially relevant in constitutional law, criminal law, and administrative law. The focus is on protecting the free and democratic basic order as enshrined in the Basic Law.
Distinction between the terms propaganda and anti-constitutional propaganda
Propaganda in its general sense refers to any form of systematically conducted, opinion-influencing communication with the aim of guiding the attitudes or behaviors of individuals or groups. Anti-constitutional propaganda is a specific form in which the content disseminated is designed to agitate against the fundamental principles of the constitution.
Legal framework
Constitutional background
The Basic Law guarantees freedom of expression (Art. 5 para. 1 GG), but imposes limits, particularly for the protection of the free and democratic basic order and public peace. Anti-constitutional propaganda exceeds these boundaries.
Essential features of the free and democratic basic order
The free and democratic basic order in particular includes:
- Respect for the human rights articulated in the Basic Law,
- popular sovereignty,
- separation of powers,
- accountability of the government,
- legality of administration,
- independence of the judiciary,
- multi-party principle, and
- equal opportunity for all political parties.
Anti-constitutional propaganda is deliberately directed against these basic principles.
Criminal law relevance
The German Criminal Code (StGB) contains several provisions addressing anti-constitutional propaganda:
Section 86 StGB – Dissemination of propaganda material of unconstitutional organizations
This provision sanctions the dissemination, public accessibility, production, offering, keeping in stock, and importation of propaganda materials of unconstitutional organizations. This includes writings, sound recordings, images, or other media that serve propaganda purposes for banned parties, associations, or their ideologies as per Section 86 (1) StGB. A prerequisite is always that the organizations in question have been banned under Art. 9 (2) GG or Section 129 StGB.
Section 86a StGB – Use of symbols of unconstitutional organizations
In addition to the ban on propaganda materials, the use of symbols (such as emblems, insignias, slogans) of unconstitutional organizations is also punishable if used in connection with anti-constitutional propaganda.
Other criminal law provisions
Other relevant provisions include, for example, Section 130 StGB (incitement of the people), Section 90a StGB (defamation of the state and its symbols), and Section 111 StGB (public incitement to crime), if the propaganda is specifically aimed at inciting crimes against the state or stirring up hatred.
Administrative law aspects
Ban on associations and parties
Organizations, associations, and parties with anti-constitutional objectives can be banned under Art. 9 (2) GG and Section 3 VereinsG. After such a ban, all propaganda in support of these organizations is fundamentally prohibited.
Indexing and securing
The distribution of anti-constitutional propaganda materials can lead to their being indexed. Authorities are authorized to secure or confiscate such materials (Section 94 StPO). This also applies to digital content.
Youth protection
Anti-constitutional propaganda is also subject to the Interstate Treaty on the Protection of Minors in the Media (JMStV) and may be classified as harmful to minors. The Federal Agency for the Protection of Children and Young Persons in the Media (formerly BPjM) indexes relevant media.
Relationship to freedom of expression
Freedom of expression is limited by general law, for the protection of youth and the right to personal honor (Art. 5 para. 2 GG). Anti-constitutional propaganda is not covered by freedom of expression when it attacks the fundamental pillars of the constitution or incites violence and arbitrariness.
Constitutionally inherent limitations
According to the constant jurisprudence of the Federal Constitutional Court, combating the free and democratic basic order does not fall under the protection of freedom of expression. The decisive factor is always a case-by-case assessment.
Practical relevance, enforcement, and sanctions
Investigation and criminal proceedings
The public prosecutor’s offices prosecute propaganda offenses within the framework of their criminal investigations. Criminal proceedings concerning the dissemination, possession, production, or import of anti-constitutional propaganda materials can be punished by imprisonment or fines. There are also possibilities for confiscation and destruction of such materials.
Prevention measures
Schools, police, and other authorities are involved in prevention efforts against extremist ideologies in accordance with Section 86 StGB. Educational and informational initiatives aim to counteract anti-constitutional propaganda.
Differences between right-wing, left-wing, and religious anti-constitutional propaganda
Anti-constitutional propaganda can originate from various ideological directions:
- Right-wing extremist propaganda: Holocaust denial, glorification of National Socialism, or antisemitic content.
- Left-wing extremist propaganda: Calls for violence against the existing state and social order, rejection of democratic institutions.
- Religiously extremist propaganda: Appeals for the establishment of a theocratic order and rejection of democratic fundamental rights.
The legal situation and the severity of punishment depend on the content, scope, and danger posed by the specific propaganda.
Anti-constitutional propaganda on the internet
With digitalization, the possibilities for spreading anti-constitutional propaganda have greatly expanded. The internet and social media serve as dissemination channels. Law enforcement is achieved via national legal regulations such as the Network Enforcement Act (NetzDG), as well as through international cooperation in criminal prosecution.
Summary
Anti-constitutional propaganda constitutes a serious attack on the foundations of the democratic state. German law provides numerous regulations at the constitutional, criminal, and administrative levels aimed at identifying, prosecuting, and preventing such attacks at an early stage. The term ‘anti-constitutional propaganda’ encompasses all efforts seeking to endanger or abolish the existence of the free and democratic basic order. Due to expanding methods of dissemination – especially in the digital sphere – the effective combatting of anti-constitutional propaganda remains an ongoing and significant challenge for the state and society.
Frequently asked questions
When is propaganda considered anti-constitutional under German law?
Under German law, propaganda is deemed anti-constitutional if it aims to impair, abolish, or is directed against the free and democratic basic order or the constitutional order or existence of the Federal Republic of Germany. Particularly decisive are the provisions in the Criminal Code (StGB), such as Section 86 (dissemination of propaganda material of unconstitutional organizations) and Section 86a (use of symbols of unconstitutional organizations). What matters is whether the statement or material in question originates from or supports an organization classified as anti-constitutional. Organizations are considered anti-constitutional if there are indications of activities directed against the free and democratic basic order. The purpose and content of the propaganda, which must be explicitly directed against the principles enshrined in the constitution, are decisive.
Which criminal law provisions regulate the handling of anti-constitutional propaganda?
German criminal law particularly relies on Sections 86 and 86a StGB. Section 86 StGB criminalizes the dissemination of propaganda materials created or distributed by unconstitutional organizations. These include flyers, posters, or digital content that serve the aims and objectives of anti-constitutional groups. Section 86a StGB further penalizes the use of symbols of such organizations, such as specific emblems, slogans, or greetings. Depending on the context, other provisions like Section 130 StGB (incitement to hatred) may also apply if the propaganda encourages hatred, violence, or discrimination. The regulations cover the production, importation, keeping in stock, and dissemination of such materials, and also apply to digital media, e.g., websites or social networks.
Who decides whether propaganda materials are classified as anti-constitutional?
The decision whether a propaganda material counts as anti-constitutional within the meaning of Sections 86, 86a StGB is primarily made by the competent public prosecutor’s office in the course of an investigation, often based on expert assessments by the Federal Office for the Protection of the Constitution or other specialist bodies. Ultimately, the courts decide in criminal proceedings whether organizations or content are classified as anti-constitutional. The relevant criteria are derived from case law and the reports of the constitutional protection authorities. It is always a case-by-case assessment, with the focus on the relationship to anti-constitutional objectives and the concrete effect.
Are there exceptions to the ban on anti-constitutional propaganda materials?
The law provides for certain exceptions. Propaganda materials of the kind listed in Section 86 (1) StGB are not punishable if they are used exclusively for civic education, the defense against unconstitutional activities, art or science, research or teaching, reporting on current events or history, or similar purposes (Section 86 (3) StGB). The boundaries of these exceptions are defined by case law and require that usage in no way contributes to anti-constitutional activities. For example, displaying Nazi symbols in a museum context or for critical elucidation in academic works is generally permitted.
What is the legal significance of the term ‘symbols of unconstitutional organizations’?
The term ‘symbols of unconstitutional organizations’ refers in particular to emblems, insignias, uniform pieces, slogans, greetings, and the like that are objectively suitable for identifying with the respective organization. Examples include the swastika for National Socialist organizations or slogans associated with such groups. In the legal context, criminal liability under Section 86a StGB depends on whether a symbol is or was used by a group banned under the Basic Law or classified as unconstitutional. The scope of protection also includes so-called substitute or numerical codes, provided these are generally recognized as symbols of the same groups.
How is the handling of anti-constitutional propaganda on the internet regulated?
The provisions of Sections 86 and 86a StGB basically also apply in the digital environment, that is, to the dissemination or provision of propaganda material on social networks, websites, or via messenger services. The Telemedia Act (TMG) and the Network Enforcement Act (NetzDG) additionally regulate the obligation of service providers to delete or block such punishable content once it becomes known to them. Law enforcement agencies can pursue perpetrators, distributors, as well as operators of platforms, if anti-constitutional propaganda is made publicly accessible or disseminated in any form. In summary: these contents are prosecuted online just as they are offline.
What sanctions are imposed for violations of the rules on anti-constitutional propaganda?
Sanctions range from fines to imprisonment for up to three years, depending on the severity of the violation and the individual circumstances of the offense. Courts may also order ancillary consequences such as seizure and destruction of the relevant propaganda materials. In cases of commercial or organized dissemination of anti-constitutional propaganda, significantly higher penalties may be imposed. Possession of such materials, especially with proven intent to distribute or use them, can also be punished. The exact penalty is based on the individual case and the specific culpability.
