Techdirt's Readers Kept This German Comedian Out Of Prison

from the trolling-Gollum dept

[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.

2 For 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.

3 Did I mention German speech laws are incredibly vague?

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Comments on “Techdirt's Readers Kept This German Comedian Out Of Prison”

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David says:

Re: Re:

“insufficiently formal pronoun to address a cop” sounds like rubbish to the English-speaking people who retired the non-formal “thou” completely centuries ago and only used the formal “you” from then on.

It’s also interesting just when “Du” (your former “thou”) can act as an insult. In dialect, it’s the only sane option for communicating. A hobo addressing a poice officer (or anybody else) as “Sie” would be peculiar.

But if you have a clearly educated and well-to-do person address a police officer as “Du” or vice versa, it comes across as a deliberate choice of not using the polite form of address.

For example, if Chancellor Merkel addressed a policeman as “Du”, it would be incredibly rude, insinuating that he is her serf and a nobody. For a hobo, it would be normal to address a policeman like that. A policeman would enter the “Für Sie immer noch Sie!” procedure for getting back to the formal level only if he was in a particularly bad mood.

Of course, part of the difference is that the policeman will in return address the hobo as “Du” unless he wants to stress the point that he is in a bad mood, while he could not address Merkel like that unless he wanted to explicitly make the point “you get only as much respect from me as you pay me”.

So yes, “Du” can very much be used as a strong deliberate insult in German and the circumstances under which it is and isn’t an insult are much more complicated than just the level of familiarity.

It’s no wonder the younger generation more and more abandons the distinction that the English got rid of somewhere between Early Modern English and Modern English.

Herr Ackerbau says:

Re: Re: Re: Indictment

DML has given an overview of the German system below; my concerns relate to the following aspects of the article: (FWIW: I am a German lawyer and have spent some months working at the prosecutor’s office, but haven’t practised criminal law since 1998.)
B.’s poem was broadcast in German state tv. E. filed a complaint against B. with the prosecutor. The prosecutor’s office in Mainz (Rheinland-Pfalz) had jurisdiction. With regard to sec. 185 of the Criminal Code (“insult”) they had to consider the issue anyway after the complaint; with regard to sec. 103 of the Criminal Code (“insulting a foreign head of state”) they needed the declaration of the German government that the proceedings may start (DML covered that well). The German federal government could have stopped the sec. 103 part, if they wanted to. They didn’t, because they were anxious that E. would take offence. So they did not block that part of the proceedings. But I think it is mistaken to conclude that they wanted B. prosecuted, since that would have been extremely unpopular in Germany. They rather said let the courts and prosecutor deal with it. The prosecutor’s office in Mainz is part of the Land Rheinland-Pfalz, the Federal Government has no authority over it (The party in charge in Rheinland-Pfalz did not support the decision of the Federal Government not to block the sec. 103 proceedings, by the way). The prosecutor had to open a preliminary proceeding, given the high importance of the case. But to me it is completely clear that they wanted to get rid of the case (having to deal with such a case is just a nuisance for a prosecutor). Which they finally did – referring to the constitutional guarantees of freedom of expression and freedom of art – without indicting B. or referring the matter to a criminal court. (The civil case against B. is also interesting with regard to several aspects, but that would warrant a separate article. I doubt that the constitutional court would affirm the decision.)
I fully agree that criminal law with regards to libel is a mess in Germany and overly vague (in some respects it’s even worse than DML puts it). But I strongly doubt that anyone in German government wanted B. prosecuted. They were just too cowardly to block the sec. 103 proceeding and hoped that somehow the prosecutor’s office or the courts would fix the problem.
So, I don’t think that B. was saved because of the Streisand effect. But of course ymmv.

davidmeyerlindenberg (profile) says:

Re: Re: Re:2 Indictment

I think we agree in almost every particular. Just a couple of quick points.

* It’s a little misleading to say the Mainz prosecutors “referred to” Article 5, the free-speech provision in Germany’s constitution, when they announced they were dismissing the case. What they actually said they wanted to do is “clarify” what constitutes protected expression under Article 5. First off, that’s not a prosecutor’s job, or indeed that of any part of the executive branch.

Second, even if they had used Article 5 to justify dismissing Böhmermann’s case instead of something that appears worryingly close to vice versa, it wouldn’t have been a substantive objection. As I’m sure you know, Article 5, for reasons that warrant a post of their own, is a paper tiger that only rarely and inconsistently blocks insult prosecutions.

* You quibbled with my use of “indicted,” so it’s only fair that I quibble with you when you say you “doubt that anyone in German government wanted B. prosecuted!” He was prosecuted, and very publicly. It’s just that the case was dismissed before it was brought to trial.

As to whether the federal government wanted him convicted, I don’t care to speculate, but I’d say your take on what they were thinking is completely plausible. The federal government chose to dump the case in the Mainz prosecutors’ laps, and the prosecutors used a constitutional excuse to get rid of it.

So I’m not seeing a lot of air between our views. You’re saying prosecuting Böhmermann was sufficiently unpopular that the decision was reached not to put him on trial and convict him. So am I. If we disagree, it’s only on how soon that decision was made and how much negative publicity was necessary.

Federalism is a much weaker force in Germany than it is in the States, and if the administration had put pressure on the Mainzers to drag him into court, I find it highly unlikely it wouldn’t have happened. After all, historically, prosecutors have been more than willing to pursue Article 103 cases.

So however the decision to dismiss the case was arrived at, we agree that the reason it was such a “nuisance,” as you put it, is that people heard all about it and hated it. That’s on the media, including the foreign media.

davidmeyerlindenberg (profile) says:

Re: Indictment

“Indicted” is a useful way to translate and compress several parts of German criminal procedure that don’t have a direct equivalent in American law. For charges to be brought under Article 185, the aggrieved party has to lodge a formal complaint with the government notifying it that it wants the accused to be tried. This isn’t an optional step: no complaint, no charges. Prosecutors can then either take up the case or decline under Section 153. Additionally, for an Article 103 prosecution to happen, you need the consent of the administration.

All these preconditions were met by the 15th of April. By this time, the government’s formally taken up the case, though it has yet to formally announce the charges in an “Anklageschrift.”

There’s a step between these two events called a “Ermittlungsverfahren,” the essence of which is that the government considers its chances of prevailing at trial. To that end, as here, it conducts an investigation. Prosecutors may also compel people, including the defendant, to appear before them and be interviewed, optionally with a lawyer present. (That’s what reportedly happened to Böhmermann.) It’s during this phase that the government decided not to proceed to trial and dismiss Böhmermann’s case.

But because the intricacies of criminal procedure have nothing to do with the post, which is long enough as it is, “indicted” was fairly useful shorthand. It gives you a good idea of how much trouble he was in.

Herr Ackerbau says:

Re: Re: Indictment

If legal terms have any meaning in the US, then it is inappropriate to talk about an indictment in a German case where there has not been a “Anklageschrift”. The prosecutor’s office will have to open preliminary proceedings in almost any case, where someone presses charges. That does not mean much.

davidmeyerlindenberg (profile) says:

Re: Re: Re: Indictment

With respect, I strongly disagree. Translating the legal parlance of a civil-law country into common-law terms is one of the biggest challenges in academia (outside STEM, anyway,) and compromises are often inevitable.

For example, consider the way the German government chooses to translate “Verbrechen” and “Vergehen,” as “felony” and “misdemeanor” respectively. That’s substantially accurate, in that it captures the spirit of both common-law concepts. But it’s not completely accurate, because the word “felony” refers to a crime punishable by a maximum of a year or more in prison, while “Verbrechen” is statutorily defined as a crime with a mandatory minimum of a year behind bars.

Or take your own use of “pressing charges” for “Strafantrag.” What Americans typically do by “pressing charges” is more similar to the German “Strafanzeige.” But you get the point across, accurately and succinctly.

Finally, Article 185 belongs to a special subset of criminal offenses known as “Antragsdelikte,” which, like I previously said, require that the aggrieved party file a Strafantrag before prosecutors can take over the case. Article 104(a) StGB imposes a substantially similar requirement on Article 103 cases, with the added caveat that the cabinet has to sign off on the prosecution before it can go forward.

These are meaningful hurdles that need to be overcome before the prosecution even gets to the Ermittlungsverfahren stage. That alone is enough to distinguish Böhmermann’s case from other prosecutions where Ermittlungsverfahren are indeed routine. (There’s always Section 153 in cases involving Vergehen charges.)

So, no, I think “prosecutors indicted” is wholly appropriate as a way to summarize what happened. A more technical text would require a more thorough explanation, in the style of this comments thread, and at 1500 words, my post’s already beefy. But it’s nice to run into someone who appreciates these difficulties.

A German Techdirt reader says:

Some context

I (as a German) would like to point something out regarding this poem. Now unfortunately it is often put out context and people reading it may get the impression Böhmermann simply wanted to provoke Erdogan. However there are two important things that happened in advance:

Germany made a deal with Turkey so they take care of refugees that actually wanted to go to Germany (crossing Turkey on their way). The so-called “refugee crisis” has been and is a difficult topic in Germany and the German government needed to keep Erdogan happy. (This is briefly mentioned in this article).

Secondly another satire show named Extra 3 made a song about Erdogan criticizing his politics on Kurds, Islamic State, the press and other topics. (There is a German Wikipedia article about this:,_Erdowo,_Erdogan) There were basically no insults in this song. However Erdogan asked for the song to be censored and the entire satire show to be dropped from German television. Böhmermann’s poem was an answer to these attempts and he even introduced the poem referencing this issue.

David says:

Re: Re:

The “du-sie” is only taken as a thing when “du” is clearly used in a deliberate manner. It’s different from calling an American police officer “mister” or a French server “garçon”: this will leave the recipient annoyed even when it is clear that the speaker’s control of language is not sufficient for realizing his offense.

Mason Wheeler (profile) says:

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.

Now, I don’t know enough about Pinochet to speak on the subject, but by all accounts he was a pretty rough guy. I do know that the Shah of Iran doesn’t deserve to be spoken of in his company.

The problem with assassinating the character of someone in living memory is that there are still people around who remember them. For example, my mom lived in Iran under the Shah, growing up. (My grandfather was an engineer doing contract work there at the time.) She and her sisters have a lot of happy memories of that time, because the Shah was building Iran into the sort of place where Western, Christian girls could feel safe. He was improving opportunities for women in his country, he was reducing the oppressive influence of Islam on society, and he was making education more widely available.

Whatever his personal faults may have been, his agenda as a leader was to make Iran a more civilized place, and he was actually succeeding! Right up until the Islamist barbarians overthrew him, that is, plunging the country into a totalitarian hellhole that it has still not recovered from.

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