Press release of 3, Juli 2025
Yes, even hate can be a legitimate opinion
A week ago, as part of an »action day against criminal hate posts and hate crime«, the Federal Criminal Police Office carried out over 180 »police measures«, including 65 house searches, for which investigators were deployed across Germany in the early hours of the morning. »#StopHate – against hate and incitement on the internet«, reads the Instagram page of the BKA.
While large sections of the German public either paid little attention to this news or welcomed it – what could be wrong with fighting hate crime? – the authors’ association PEN Berlin is concerned about this development. This relates to the subject of the investigations, the police’s actions and the framework – the »action day«.
PEN Berlin spokesperson Deniz Yücel commented: »It is undeniable that digitalisation has been accompanied by a coarsening of the public sphere, which harms not only those affected by insults or threats, but also the culture of debate as a whole. However, the question arises as to whether the authorities are overreacting far too often and thereby damaging freedom of expression themselves.«
This official overzealousness is evident on three levels: Firstly, »hatred and incitement« is not a legal category, but has long since become a term used to describe statements that are perhaps increasingly distasteful, but which are nevertheless protected by freedom of expression. This trend is all the more worrying when leading representatives of the executive branch explicitly declare war on statements that are »below the threshold of criminal liability«.
Secondly, the legal limits of permissible expression have recently been narrowed by extending Section 188 of the German Criminal Code (StGB) to include the offence of insult. Previously, only defamation and libel against persons in political life were subject to separate penalties. The coalition agreement between the CDU/CSU and SPD provides for further restrictions on freedom of expression.
Thirdly, PEN Berlin has observed a tendency for the police, public prosecutors, and sometimes even courts of first instance, to restrict freedom of expression. Authorities and courts may act with noble intentions, such as combatting anti-Semitism or racism. However, no intention, however noble, justifies undermining fundamental rights.
PEN Berlin naturally shares the goal of curbing anti-Semitism and racism. However, we believe that this is the task of civil society, and that coercive measures by the state can only achieve this to a limited extent.
According to statistics on politically motivated crime, offences under Sections 86 and 86a of the German Criminal Code (the distribution of propaganda material from unconstitutional or terrorist organisations, or the use of their symbols) more than doubled between 2015 and 2024. Cases of incitement to hatred (Section 130) doubled in the same period, while offences against honour, such as insults or defamation (Sections 185 to 188 of the German Criminal Code), more than tripled, and the number of recorded offences on the internet rose by three and a half times.
Indeed, performative offences can lead to acts of violence. However, the PMK statistics do not show a corresponding increase. In fact, politically motivated acts of violence fell by almost 20 per cent between 2015 and 2024 (although the figure of 3,561 cases is still alarming).
Even in cases where there is well-founded suspicion of a crime, the actions of the police authorities — i.e. early morning raids — appear disproportionate. There may be cases where a house search is reasonable in order to secure evidence. But in the case of hate posts, the incriminating act has already been committed. Only in a few cases is it possible to claim that there is a risk of evidence being destroyed or the perpetrators fleeing, which would justify such a tactic. »Such an approach is characteristic of authoritarian regimes, but unworthy of a constitutional state«, said Yücel.
The context in which these searches took place is also questionable. Yücel commented: »PEN Berlin can call for an ›action day‹ against this or that, just like the Junge Union or a gardeners’ association. But the task of the investigating authorities is to prosecute crimes within the framework of the law and in accordance with the constitution as soon as they become aware of them. It is not their job to organise ›action days‹ or ›send a message‹. That is what the police do in authoritarian regimes: they send messages to intimidate and deter.«
The sending of signals, or the recent ban by the Federal Administrative Court on the right-wing extremist conspiracy magazine Compact, suggests that the widespread perception that freedom of expression in Germany is restricted is not entirely unfounded.
»Fortunately, Germany has a supreme court that, in recent years, has almost always ruled in favour of freedom of expression, freedom of the press, and freedom of art when in doubt«, concluded PEN spokesman Yücel. »This corrective measure punishes talk of a looming dictatorship of lies. However, it would be better if the executive bodies did not have to be corrected at all, and remembered that freedom of speech includes the right to express stupid or repugnant views. Yes, even hatred can be an opinion that society must tolerate.« In this light, the work of the so-called reporting centres must also be reviewed.
We should bear in mind the landmark ruling of the European Court of Human Rights in 1976 (Handyside v. United Kingdom), which states that the right to freedom of expression applies not only to ›information‹ or ›ideas‹ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. This is the requirement of pluralism, tolerance and broad-mindedness, without which there can be no ›democratic society‹.«
PEN Berlin. We stand by our word.