The German (StGB; ) in section § 86a outlaws use of symbols of "

unconstitutional In constitutional law, constitutionality is said to be the condition of acting in accordance with an applicable constitution; "Webster On Line" the status of a law, a procedure, or an act's accordance with the laws or set forth in the applic ...

organizations" and

terrorism Terrorism, in its broadest sense, is the use of violence against non-combatants to achieve political or ideological aims. The term is used in this regard primarily to refer to intentional violence during peacetime or in the context of war aga ...

outside the contexts of "art or science, research or teaching". The law does not name the individual symbols to be outlawed, and there is no official exhaustive list. However, the law has primarily been used to suppress

fascist Fascism ( ) is a far-right, authoritarian, and ultranationalist political ideology and movement. It is characterized by a dictatorial leader, centralized autocracy, militarism, forcible suppression of opposition, belief in a natural soci ...

Nazi Nazism (), formally named National Socialism (NS; , ), is the far-right politics, far-right Totalitarianism, totalitarian socio-political ideology and practices associated with Adolf Hitler and the Nazi Party (NSDAP) in Germany. During H ...

communist Communism () is a sociopolitical, philosophical, and economic ideology within the socialist movement, whose goal is the creation of a communist society, a socioeconomic order centered on common ownership of the means of production, di ...

, Islamic extremist and Russian militarist symbols. The law, adopted during the

Cold War The Cold War was a period of global Geopolitics, geopolitical rivalry between the United States (US) and the Soviet Union (USSR) and their respective allies, the capitalist Western Bloc and communist Eastern Bloc, which lasted from 1947 unt ...

, most notably affected the

Communist Party of Germany The Communist Party of Germany (, ; KPD ) was a major Far-left politics, far-left political party in the Weimar Republic during the interwar period, German resistance to Nazism, underground resistance movement in Nazi Germany, and minor party ...

, which was banned as unconstitutional in 1956; the Socialist Reich Party, which was banned in 1952; and several small far-right parties. The law prohibits the distribution or public use of symbols of unconstitutional groups—in particular, flags, insignia, uniforms, slogans and forms of greeting.

Text

The relevant excerpt of the German criminal code reads:

Symbols affected

The text of the law does not name the individual symbols to be outlawed, and there is no official exhaustive list. A symbol may be a flag, emblem, uniform, or a motto or greeting formula. The prohibition is not tied to the symbol itself but to its use in a context suggestive of association with outlawed organizations. Thus, the

Swastika The swastika (卐 or 卍, ) is a symbol used in various Eurasian religions and cultures, as well as a few Indigenous peoples of Africa, African and Indigenous peoples of the Americas, American cultures. In the Western world, it is widely rec ...

is outlawed if used in a context of völkisch ideology, while it is legitimate if used as a symbol of religious faith, particularly any South, South Eastern or East Asian religions. Similarly, the is outlawed if used in the context of the Junge Front but not in other contexts such as heraldry, or as the emblem of "landscape poet" Hermann Löns. Because of the law, German Neo-Nazis took to displaying modified symbols similar but not identical with those outlawed. In 1994, such symbols were declared equivalent to the ones they imitate ( § 2). As a result of the ban on Nazi symbols, German Neo-Nazis have used older symbols such as the black-white-red German Imperial flag (which was also briefly used by the Nazis alongside the party flag as one of two official flags of Nazi Germany from 1933 until 1935) as well as variants of this flag such as the one with the and the variants, the Imperial-era , the and the flag of the Strasserite Black Front – a splinter Nazi organization – as alternatives. They have also used the American Confederate flag, due to its association with racism and

white supremacy White supremacy is the belief that white people are superior to those of other races. The belief favors the maintenance and defense of any power and privilege held by white people. White supremacy has roots in the now-discredited doctrine ...

. Affected by the law according to

Federal Constitutional Court of Germany The Federal Constitutional Court ( ; abbreviated: ) is the supreme court, supreme constitutional court for the Germany, Federal Republic of Germany, established by the constitution or Basic Law for the Federal Republic of Germany, Basic Law ...

rulings are: * (1952) * (1956) * () * (1982) * (1983) * (1992) (not to be confused with ) * (1992) * (1994) * (1995) * Blood and Honour, Germany chapter (2000) Symbols known to fall under the law are: *the

swastika The swastika (卐 or 卍, ) is a symbol used in various Eurasian religions and cultures, as well as a few Indigenous peoples of Africa, African and Indigenous peoples of the Americas, American cultures. In the Western world, it is widely rec ...

as a symbol of the

Nazi Party The Nazi Party, officially the National Socialist German Workers' Party ( or NSDAP), was a far-right politics, far-right political party in Germany active between 1920 and 1945 that created and supported the ideology of Nazism. Its precursor ...

, prohibited in all variants, including mirrored, inverted etc. (exceptions are only applied to swastikas used as religious symbols in Hindu, Buddhist, and Jain temples) *a stylized

Celtic cross upright 0.75 , A Celtic cross symbol The Celtic cross is a form of ringed cross, a Christian cross featuring a nimbus or ring, that emerged in the British Isles and Western Europe in the Early Middle Ages. It became widespread through its u ...

, prohibited as a symbol of the VSBD/PdA and in the variant used by the White Power movement. The legal status of the symbol used in non-political contexts is uncertain, but non-political use is not acted upon in practice. *the solar cross as a symbol of the

Ku Klux Klan The Ku Klux Klan (), commonly shortened to KKK or Klan, is an American Protestant-led Christian terrorism, Christian extremist, white supremacist, Right-wing terrorism, far-right hate group. It was founded in 1865 during Reconstruction era, ...

(symbol of cross burning from the "second Klan" era onward), the German Faith Movement, the Thule Society and the 5th and 11th

Waffen SS The (; ) was the combat branch of the Nazi Party's paramilitary ''Schutzstaffel'' (SS) organisation. Its formations included men from Nazi Germany, along with volunteers and conscripts from both German-occupied Europe and unoccupied lands. ...

divisions *the Sig rune as used by the SS *the emblem *the legal status of the Othala SS-rune is disputed; prohibited as a symbol of the . Post-war military usage was incorporated into the with a stylized "Odal SS-rune" being featured on the shoulder insignia of the with it also being used by the ranks succeeding it. *the as used by the

2nd A second is the base unit of time in the International System of Units (SI). Second, Seconds, The Second, or (The) 2nd may also refer to: Mathematics * 2 (number), as an ordinal (also written as ''2nd'' or ''2d'') * Minute and second of arc, ...

, 4th and 34th

Waffen-SS The (; ) was the military branch, combat branch of the Nazi Party's paramilitary ''Schutzstaffel'' (SS) organisation. Its formations included men from Nazi Germany, along with Waffen-SS foreign volunteers and conscripts, volunteers and conscr ...

divisions, and * badges (2002) *: prohibited in the Third Reich version including a swastika. *the greeting (1970) *the greeting (1990) * , along with the symbol, as the motto of the

and as the verbal equivalent of the Hitler salute. *The with the Nazi swastika. *the (the anthem of the Nazi Party) and (a song of the Hitler-Jugend) (1991) *the

hammer and sickle The hammer and sickle (Unicode: ) is a communist symbol representing proletarian solidarity between industrial and agricultural workers. It was first adopted during the Russian Revolution at the end of World War I, the hammer representing wo ...

red star A red star, five-pointed and filled, is a symbol that has often historically been associated with communist ideology, particularly in combination with the hammer and sickle, but is also used as a purely socialist symbol in the 21st century. ...

and red flag when used as emblems of the

*The Black Standard of the

Islamic State The Islamic State (IS), also known as the Islamic State of Iraq and the Levant (ISIL), the Islamic State of Iraq and Syria (ISIS) and Daesh, is a transnational Salafi jihadism, Salafi jihadist organization and unrecognized quasi-state. IS ...

; widely considered the chief sigil or flag of the jihadi group. * the

People's Protection Units The People's Defense Units (YPG), also called People's Protection Units, is a libertarian socialist US-backed Kurds in Syria, Kurdish militant group in Syria and the primary component of the Syrian Democratic Forces (SDF). The YPG mostl ...

(YPG) pennant was explicitly banned as a symbol related to the PKK on 2 March 2017, even though the organisation itself is not currently recognised as terrorist. *Since the 2022 invasion of Ukraine by Russia, several states including

Berlin Berlin ( ; ) is the Capital of Germany, capital and largest city of Germany, by both area and List of cities in Germany by population, population. With 3.7 million inhabitants, it has the List of cities in the European Union by population withi ...

Lower Saxony Lower Saxony is a States of Germany, German state (') in Northern Germany, northwestern Germany. It is the second-largest state by land area, with , and fourth-largest in population (8 million in 2021) among the 16 ' of the Germany, Federal Re ...

and

Bavaria Bavaria, officially the Free State of Bavaria, is a States of Germany, state in the southeast of Germany. With an area of , it is the list of German states by area, largest German state by land area, comprising approximately 1/5 of the total l ...

are looking to put the military Z symbol under the law. *

Hamas The Islamic Resistance Movement, abbreviated Hamas (the Arabic acronym from ), is a Palestinian nationalist Sunni Islam, Sunni Islamism, Islamist political organisation with a military wing, the Qassam Brigades. It has Gaza Strip under Hama ...

is considered a terrorist organisation in the European Union and has been forbidden in Germany since 2023. Accordingly, the public use of all symbols of Hamas is prohibited, including their emblem, flag, logo, images of their representatives, and the red triangle used by Hamas to mark their targets. The phrase " From the river to the sea" is also considered a symbol of Hamas, as long as it is not used in a context that "unambiguously" has nothing to do with the organisation, for example if the organisators of a demonstration have explicitly distanced themselves from Hamas. The use of the Palestinian flag is generally allowed, but might be subjected to restrictions in some schools. Palestinian flags have been confiscated by the police at some demonstrations. Illustration of the emblems mentioned in the list above: File:National Socialist swastika.svg, Nazi

File:Parteiadler der Nationalsozialistische Deutsche Arbeiterpartei (1933–1945).svg, Party Eagle () of the Nazi Party File:Crossed circle.svg, Solar cross File:Celtic Crosses.svg,

as used by White Power movements File:Thule-Gesellschaft.svg, Broken solar cross of the Thule Society and the German Faith Movement File:KKK.svg,

(1915–current) File:Wolfsangel.svg, File:Nazi Odal rune.svg,

Odal rune Othala (), also known as ēðel and odal, is a rune that represents the ''o'' and ''œ'' phonemes in the Elder Futhark and the Anglo-Saxon Futhorc writing systems respectively. Its name is derived from the reconstructed Proto-Germanic *''ōþa ...

File:SA-Logo.svg, emblem File:Sig runes.svg, sig runes File:Totenkopf.svg, File:Flag of the NSDAP (1920–1945).svg, Flag of the

Flag of Germany (1935–1945).svg, Flag of the

Third Reich Nazi Germany, officially known as the German Reich and later the Greater German Reich, was the German state between 1933 and 1945, when Adolf Hitler and the Nazi Party controlled the country, transforming it into a totalitarian dictat ...

(1935–1945) File:War Ensign of Germany 1938-1945.svg, 1938–1945 (national war flag) File:Reichsdienstflagge 1935.svg, 1935–1945 (Reich service flag) File:KPD-logo.svg, Emblem of the

(redrawn after a historical lapel pin) File:Flag of the Communist Party of Germany.svg, Red flag of the

File:Flag of the Communist Party of Germany (reverse).svg, Reverse side of the red flag of the Communist Party of Germany File:AQMI Flag asymmetric.svg,

version of the jihadist black flag File:People's Protection Units Flag.svg, Flag of the Kurdish

File:2022 Russian Invasion vehicle marking Z.svg, Russian "Z" military symbol File:Flag of al-Qassam Brigades.svg, Hamas flag

Anti-fascist symbols

In 2005, controversy arose about whether the paragraph should be taken to apply to the display of ''crossed-out'' swastikas as a symbol of

anti-fascism Anti-fascism is a political movement in opposition to fascist ideologies, groups and individuals. Beginning in European countries in the 1920s, it was at its most significant shortly before and during World War II, where the Axis powers were op ...

. In late 2005 police raided the offices of the

punk rock Punk rock (also known as simply punk) is a rock music genre that emerged in the mid-1970s. Rooted in 1950s rock and roll and 1960s garage rock, punk bands rejected the corporate nature of mainstream 1970s rock music. They typically produced sh ...

label and mail order store "Nix Gut Records" and confiscated merchandise depicting crossed-out swastikas and fists smashing swastikas. In 2006 the

Stade Stade (; ), officially the Hanseatic City of Stade (, ) is a city in Lower Saxony in northern Germany. First mentioned in records in 934, it is the seat of the Stade (district), district () which bears its name. It is located roughly to the wes ...

police department started an inquiry against anti-fascist youths using a placard depicting a person dumping a swastika into a trashcan. The placard was displayed in opposition to the campaign of right-wing nationalist parties for local elections. On Friday, 17 March 2006, a member of the

Bundestag The Bundestag (, "Federal Diet (assembly), Diet") is the lower house of the Germany, German Federalism in Germany, federal parliament. It is the only constitutional body of the federation directly elected by the German people. The Bundestag wa ...

, Claudia Roth, reported herself to the German police for displaying a crossed-out swastika in multiple demonstrations against Neo-Nazis and got the Bundestag to suspend her immunity from prosecution. She intended to show the absurdity of charging anti-fascists with using fascist symbols: "We don't need prosecution of non-violent young people engaging against right-wing extremism." On 15 March 2007, the Federal Court of Justice of Germany (Bundesgerichtshof) reversed the charge and held that the crossed-out symbols were "clearly directed against a revival of national-socialist endeavors", which thereby settled the dispute for the future.

Application to forms of media

Section 86a includes a social adequacy clause that allows the use of the symbols that fall within it for the purposes of "art or science, research or teaching". This generally allows these symbols to be used in literature, television shows (as with the 1968 ''Star Trek'' episode, "Patterns of Force", itself allowed after 1995), films, and other works of art without censoring or modification and stay within the allowance for the clause. For example, German cinemas were allowed to screen ''

Raiders of the Lost Ark ''Raiders of the Lost Ark'' is a 1981 American action-adventure film directed by Steven Spielberg and written by Lawrence Kasdan, based on a story by George Lucas and Philip Kaufman. Set in 1936, the film stars Harrison Ford as Indiana ...

'' and ''

Inglourious Basterds ''Inglourious Basterds'' is a 2009 epic film, epic war film written and directed by Quentin Tarantino. It stars an ensemble cast including Brad Pitt, Christoph Waltz, Michael Fassbender, Eli Roth, Diane Kruger, Daniel Brühl, Til Schweiger ...

'', films which feature frequent displays of Nazi symbols, without

censorship Censorship is the suppression of speech, public communication, or other information. This may be done on the basis that such material is considered objectionable, harmful, sensitive, or "inconvenient". Censorship can be conducted by governmen ...

. Up until 2018,

video game A video game or computer game is an electronic game that involves interaction with a user interface or input device (such as a joystick, game controller, controller, computer keyboard, keyboard, or motion sensing device) to generate visual fe ...

s were not included in the social adequacy clause. A High District Frankfurt Court ruling in 1998 over the video game ''

Wolfenstein 3D ''Wolfenstein 3D'' is a 1992 first-person shooter game developed by id Software and published by Apogee Software and FormGen for DOS. It was inspired by the 1981 Muse Software video game '' Castle Wolfenstein'', and is the third installment ...

'' determined that because video games do attract young players, "this could lead to them growing up with these symbols and insignias and thereby becoming used to them, which again could make them more vulnerable for ideological manipulation by national socialist ideas". Since this ruling, the (USK), the German content ratings board, would refuse to rate any game that includes symbols under Section 86a, effectively banning them from retail sales within Germany. This led to software developers and publishers to either avoid publication in Germany, or create alternative, non-offending symbols to replace them, such as in '' Wolfenstein II: The New Colossus,'' where the developer had to replace the game's representation of Adolf Hitler with a version without the moustache and named "Chancellor Heiler". In August 2018, the German government reversed this ruling as a result of a ruling from April 2018. The web-based game was released prior to the September 2017 elections, which included parodies of the candidates fighting each other; this included Alexander Gauland, who had a special move that involved swastika imagery. When this was noticed by public authorities, they began prosecution of the game in December 2017, submitting it to the Public Prosecutor General's office for review based on the ''Wolfenstein 3D'' decision. The Attorney General declined to consider the game illegal under Section 86a, stating that the 1998 ruling was outdated; since then, USK had adopted age ratings for video games, and that there was no reason not to consider video games as art within the social adequacy clause. As a result, the Federal Department for Media Harmful to Young Persons adapted the Attorney General's ruling to be applicable for all video games within Germany, and subsequently the USK announced this change in August 2018; USK will still review all games to judge whether the use of imagery under Section 86a remains within the social adequacy clause and deny ratings to those that fail to meet this allowance. In August 2020, '' Through the Darkest of Times'', in which players follow an anti-Nazi resistance group, became the first game permitted by USK to depict swastikas.

Notes

References

External links

Recht gegen Rechts: Symbole - strafbar oder erlaubt?

Der Lehrerfreund: Rechtsradikale Symbole auf Jacke, Rucksack ...

* ttp://www.forbiddensymbols.com Collection of forbidden symbols {{DEFAULTSORT:Strafgesetzbuch Section 86a Anti-communism in Germany Anti-fascism in Germany Censorship in Germany German criminal law Nazi symbolism