The German Strafgesetzbuch (StGB; English: Criminal Code) in section § 86a outlaws use of symbols of "unconstitutional organizations" and terrorism 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, Nazi, communist, extremist and Russian militarist symbols. The law, adopted during the Cold War, most notably affected the Communist Party of Germany, 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.
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The relevant excerpt of the German criminal code reads:
§ 86 StGB Dissemination of Means of Propaganda of Unconstitutional Organizations
§ 86a StGB Use of Symbols of Unconstitutional Organizations
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 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 Wolfsangel 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 (Verbrechensbekämpfungsgesetz § 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 Eiserne Kreuz and the Reichsdienstflagge variants, the Imperial-era Reichskriegsflagge, the Schwarze Sonne and the flag of the Strasserite Black Front – a splinter Nazi organization – as alternatives. They have also used the American Confederate battle flag, due to its association with racism and white supremacy.
Affected by the law according to Federal Constitutional Court of Germany rulings are:
Sozialistische Reichspartei (1952)
Kommunistische Partei Deutschlands (1956)
Freie Deutsche Jugend (West Germany)
Volkssozialistische Bewegung Deutschlands/Partei der Arbeit (1982)
Aktionsfront Nationaler Sozialisten/Nationale Aktivisten (1983)
Deutsche Alternative (1992) (not to be confused with Alternative für Deutschland)
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. In late 2005 police raided the offices of the punk rock label and mail order store "Nix Gut Records" and confiscated merchandise depicting crossed-out swastikas and fists smashing swastikas. In 2006, the Stade 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, 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 and Inglourious Basterds, films which feature frequent displays of Nazi symbols (albeit clearly depicting the users of these symbols as villains), without censorship.
Up until 2018, video games were not included in the social adequacy clause. A High District Frankfurt Court ruling in 1998 over the video game Wolfenstein 3D 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 Unterhaltungssoftware Selbstkontrolle (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 Bundesfighter II Turbo 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.