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Techdirt's Readers Kept This German Comedian Out Of Prison

[The following post was contributed by Fault Lines (a Scott Greenfield/Lee Pachia joint) columnist David Meyer Lindenberg, a self-described “wannabe 1-L” and actual German. The last fact explains his in-depth knowledge of German speech laws, which Mike Masnick has graciously allowed him to dump all over Techdirt’s pages. Enjoy! {And possibly NSFW around the middle-ish.}]

Remember Jan Böhmermann? The guy who caused a major diplomatic spat back in April when he read out a satirical poem about Recep Tayyip Erdogan, the notoriously thin-skinned Turkish president, on a German comedy show?

Usually, what happens on Central European state-run TV stays on Central European state-run TV. Not this time. “Erdogate” went massively viral: there were protests in the streets of Istanbul. Techdirt covered it at length. Even a guy named John Oliver did a segment on it.

Now Erdogate’s back in the news, with a number of media outlets reporting that a German court just permanently enjoined Böhmermann from reciting his own poem. Sucks for him, right? Actually, no. Bad as it is, things are usually a hell of a lot worse for people in his position.

First, a little historical context. Böhmermann’s poem came at an inopportune time for the German government, which relies on Turkey to help stem the flow of Syrian refugees into Europe. And Erdogan, the Turkish strongman who was himself imprisoned in 1997 for reading a political poem out loud, is exactly the kind of guy to endanger a bilateral agreement over his hurt feelz.

These feelz of his are very sensitive, indeed. For example, he doesn’t like it when you compare him to Gollum. (There are some alleged similarities between the two.) If you’re a Turk and ask him to guess what you’ve got in your pocketses, he’ll have you convicted of a crime. On the other hand, if you’re fortunate enough to live somewhere with freedom of speech, the worst he can do is block you on Twitter.

What if you live in a foreign country that nevertheless has archaic, repressive speech laws? As a lot of surprised Germans found out in mid-April, it may mean Erdogan and other delicately minded people can reach out to your government and get it to punish you for them.

On or around April 15, German prosecutors indicted Böhmermann on a count of insulting a foreign head of state, a felony punishable by up to three years in prison under Article 103 of the federal criminal code. Erdogan also sued — something he does a lot — and in May, a Hamburg court issued a preliminary injunction blocking Böhmermann from saying the poem out loud.

Of course, that just had the effect of Streisanding the comedian and his poem into the stratosphere. I wasn’t totally happy with the non-rhyming translation floating around the web, so I came up with one of my own.

That Erdogan, the President’s,

a dumb, repressed, repressive gent.

He reeks of bad kebab. Your nose

will think a pig’s fart was a rose

once you’ve inhaled his scent. He beats

up helpless women in the streets

behind a mask. He gets his kicks

from fucking goats and watching flicks

of child abuse. Christians and Kurds

are made to lick his fetid turds.

Instead of sleep, it’s his delight

to blow a hundred sheep a night.

Compared to theirs, the President’s cock

is limp and floppy as a sock.

As any Turk will tell you, “Yup,

his tiny nuts are shriveled up.“

From Istanbul to Ankara town,

the guy’s a fag of great renown,

a lousy perv, a devotee

of vilest bestiality.

He forces women to his bed,

his balls as empty as his head.

No bunga-bunga party can

be called complete without the man:

his lust for sex is quite unique.

He fucks ‘til, when he takes a leak,

his penis burns like phlogiston.

That’s Recep Tayyip Erdogan,

the Turkish President.

Fast forward to this year. On February 10, the Hamburg court ruled in Erdogan’s favor, making the preliminary injunction permanent and ordering Böhmermann to pay $2000 in legal fees. Bad? Yes. Illiberal? Totally. Anywhere near as bad as it would’ve been if the Streisand effect hadn’t made Böhmermann famous? No. To understand why, we need to understand how insult prosecutions work in Germany.

Something that attracted a lot of attention during the Erdogate coverage was Merkel’s promise to repeal Article 103 as soon as Böhmermann’s case was resolved. The law came in for its share of criticism, including at Techdirt. And rightly so. Laws that criminalize making fun of heads of state are an undemocratic throwback to lèse-majesté, the idea that it’s wrong to offend the king. What’s more, the German government has a long, sad history of using Article 103 to silence people who criticize foreign despots like the Shah of Iran and Chile’s Augusto Pinochet.

While people’s attention was focused on the absurdities of German law, the actual case against Böhmermann died a slow death. On October 4, prosecutors in Mainz announced they were dismissing the charges, allegedly because they didn’t think they could prove the poem was a criminal insult.1 This cleared the way for Merkel to make good on her promise, and in January, the German cabinet announced it was going to follow through and scrap Article 103.

To be sure, it all looks incredibly reform-y. Erdogan got his ass kissed, Böhmermann got away by the seat of his pants and people get to applaud the government for championing free speech. But appearances can be deceiving.

You see, Germany can easily afford to lose Article 103. The state has dozens of speech statutes at its disposal, laws criminalizing everything from US-style defamation to what, in America, would be indisputably protected expression. What’s more, many of these laws cover the same conduct. The result is that some of the more specific statutes work like sentencing enhancements.2

Article 103’s exactly that kind of law. It makes insulting foreign heads of state a felony, but repealing it wouldn’t decriminalize making fun of the likes of Erdogan. If it does, the government can simply prosecute under Article 185, Germany’s misdemeanor-insult statute, one of the most vague, expansive and authoritarian pieces of legislation ever devised. A classic example of an offense under Article 185 — and I’m not kidding here — is using an insufficiently formal pronoun to address a cop.

Worse, the law practically invites selective prosecutions. Officially, Article 185 makes it a crime to insult anyone. However, under Section 153 of the federal code of criminal procedure, prosecutors are free to throw out misdemeanor cases if they decide there’s no “public interest” in pursuing charges. It’s prosecutorial discretion at its worst.

The predictable result is that prosecutors only pursue insult cases when you offend a famous person, a government official or someone the prosecutor likes. Conversely, famous people and government officials who insult others are almost never charged.

Everyone knows it, too. The colloquial term for an Article 185 case is “Beamtenbeleidigung” (lit. “insulting an official,”) and when Germany’s economy minister flipped off a bunch of right-wing protesters in August, the media treated it as a hilarious joke.

Things get more interesting, and weird, when you look at what happens when celebrities and government officials insult each other. In 2005, an undeservedly famous singer-songwriter got in a fight with a Hamburg cop over a parking spot. Because failing to respect a police officer’s authoritah is an actual crime in Germany, the cop charged him with insult.

The same court that banned Böhmermann from saying his poem found for the celebrity in 2006, ruling that because he was habitually rude, what he said to the cop was generalized “impoliteness” that didn’t rise to the level of insult.3 This, to put it mildly, is the kind of break no judge would ever cut a less well-connected defendant.

And in December of last year, a cop was charged when he called Merkel “criminal” and “insane.” That case hasn’t been resolved yet, but the fact that some random cop’s a lot less important than the wrath of the Chancellor suggests it’s unlikely he’ll be acquitted.

Because Article 103 duplicates the elements of an offense under Article 185, the same unofficial rules for who gets charged and convicted apply. Böhmermann, a minor celebrity in his own right, was only charged in the first place because he offended an extremely well-connected person. If he’d written his poem about some bum in the street instead of a man with significant value to the German government, the authorities would’ve laughed at the joke and moved on.

But it’s not all bad. The main reason Böhmermann’s case was dismissed, in a country where homeless men are occasionally imprisoned for saying rude things to bureaucrats on the phone, is that people all over the world responded to the Streisand effect and turned him into an international free-speech martyr.

With each retweet of a story about him and his poem, you helped make him more important than Erdogan’s ego. The fact that he’s not a felon right now isn’t on the government and its promise to scrap a law it doesn’t need. It’s on you. And those of us who love free speech appreciate it.

1 If that’s true, they may want to find a new line of work.

2For example, while Articles 186 and 187 criminalize defamation, 188 covers defaming a government official and provides a steeper sentence. Article 90, one of several lèse-majesté laws, makes it a felony to insult the President of Germany, something that’s already a misdemeanor under Article 185.

3Did I mention German speech laws are incredibly vague?

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Author: David Meyer Lindenberg

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