EU Court: Blog’s Nazi Photo Was Clickbait, Not Free Speech

Reichsfuhrer-SS Heinrich Himmler and a prisoner at the Dachau concentration camp in 1936. (Bundesarchiv, Bild 152-11-12)

(CN) – The European Court of Human Rights on Thursday rejected a German man’s free-speech case, finding his inclusion of a photo of Hitler henchman Heinrich Himmler in full Nazi regalia in a blog post was more clickbait and less about making a political statement.

Munich resident Hans Nix runs a blog on which he provides commentary on political, economic and social issues. He also has a daughter of German-Nepalese origin.

When his daughter turned 18 and was about to finish high school, the local employment office sent her a letter asking whether she intended to go to college or begin vocational training. The daughter’s dealings with the employment office inspired Nix to write six blog posts in which he opined the office’s intention was to push his daughter into the “low-wage economy” because she is a person of color.

One of the blog posts also included a photo of Himmler decked out in SS uniform, Nazi party badge and swastika arm band. Nix also posted a quote from Himmler about the education of children in Eastern Europe during the Nazi occupation and called out his daughter’s employment office caseworker by name.

German criminal code forbids “the use of symbols of unconstitutional organizations” outside the context of art, education, science and research. While the law doesn’t specify which symbols are outlawed, it has been typically used to prosecute displays of Nazi and communist flags, insignia, logos, uniforms, slogans and greetings.

A Munich court convicted Nix of several crimes, including using symbols of unconstitutional organizations. After his appeals were rejected and the German Constitutional Court refused to take up his case, Nix lodged a complaint with the European Court of Human Rights claiming his criminal conviction infringed his right to expression.

On Thursday, a 7-justice panel of the EU rights court unanimously declared Nix’s complaint inadmissible, and made that decision final.

“In the light of their historical role and experience, states which have experienced the Nazi horrors may be regarded as having a special moral responsibility to distance themselves from the mass atrocities perpetrated by the Nazis,” the justices wrote. “The court considers that the Legislature’s choice to criminally sanction the use of Nazi symbols, to ban the use of such symbols from German political life, to maintain political peace (also taking into account the perception of foreign observers), and to prevent the revival of Nazism must be seen against this background.”

They added: “The court observes that the symbol used by the applicant – a picture of Heinrich Himmler in SS uniform with a swastika armband – cannot be considered to have any other meaning than that of Nazi ideology. Domestic courts have, on another occasion, held that showing a picture of Himmler in SS uniform in itself constituted the use of symbols of unconstitutional organizations within the meaning of Article 86a of the criminal code.

“The applicant must have been aware of the pertinent provision and case-law of the domestic courts, not least because he had been convicted of the same offense for having published a picture of [German chancellor] Angela Merkel in Nazi uniform with a swastika armband and a painted Hitler-moustache some six weeks before he published the blog post at issue in the present case.”

The justices acknowledged Nix didn’t intend to spread totalitarian propaganda, utter hate speech, or incite violence, and pointed to press reports detailing complaints of discrimination against migrants and people of color at schools and by employment offices. But because Nix didn’t make clear his posting the photo of Himmler in Nazi garb was to inform the public of discrimination by the office, the justices said the German courts were correct in finding the photo amounted to clickbait.

“This gratuitous use of symbols was exactly what the provision sanctioning the use of symbols of unconstitutional organizations was intended to prevent, as it was meant to pre-empt anyone becoming used to certain symbols by banning them from all means of communication,” the justices wrote.

“The historical experience of Germany is a weighty factor to be taken into account when determining whether there exists a pressing social need for interfering with an applicant’s right to freedom of expression. The interference was proportionate to the legitimate aim pursued and was thus ‘necessary in a democratic society.’”

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