I have a German friend I've known for a long time, who heard about the John Oliver segment on the Erdogan lawsuit, in conjunction with the reaction from some people in Germany, and infuriated, asked me to share a short response from him to a largely leftist, American audience (he is also generally well to my left, though in ways that don’t match up 1:1 with American politics or conceptions). My friend also despises Erdogan with a fiery passion, yet still sees a problem with how this case has been turned into an lightning rod (read racially problematic, and anti-Turk, bigi ssues in Germany, where the Turkish population is routinely marginalized and attacked). Central to his anger, is pointing out double standards and misinformation, (including Oliver’s implication that this is some obscure law that no one has every heard of being brought of ancient history just to appease Reycip Erdogan). so without further ado:
On March 17, 2016, a German comedy show published a humorous video called Erdowie Erdowo Erdogan, making fun of the Turkish government's near-despotic rule and the way Europe, especially Germany, has been ignoring all of these due to Turkey's pivotal role in the refugee crisis. Erdogan, not accustomed to criticism and free speech, called in Germany's ambassador and demanded that the video be taken down. No such thing apparently happened. There was no official reaction from the German government, and the TV show instead uploaded a version with English and Turkish subtitles, just to rub it in. On March 31st, a different comedy show host decided to probe the issue further and read a poem insulting Erdogan. He is now being prosecuted for it. People are upset about that. They are (somewhat) wrong.
Now, the fact is that in Germany, free speech is carefully limited. You can't deny the Shoah, you can't write too-transparent romans-à-clef, and, finally, you cannot insult people in a way that insults their “honor.” If that expression sound quaint and odd, that's because it is. However, our Supreme Court has stated in a landmark case in 1988 that there are limits to how far satire and art can go: if they insult someone personally grievously enough, that person can demand that the affair be prosecuted. The case in question showed a state governor drawn like a pig, anally penetrating a different pig wearing judge's robes. While this case illustrates the limits to free speech in Germany, the law that has people up in arms regarding Böhmermann's poem is a different one. The clause in question, §103 STGB, has an illustrious history reaching back all the way to 1871, when modern Germany was founded on the ruins of a victorious war against France. The clause was meant to punish lèse-majesté, the insult of members of royal families abroad. After WWII, the clause was revived and extended to now apply to all heads of state. Like the domestic laws against insults, this clause, too, required an express complaint by the head of state in question, with an added filter: the government had to allow the suit to proceed.
The law has been used sparingly, most recently in 2007, when the Swiss President Micheline Calmy-Rey sued a blogger in Bavaria (and won). The reason for its spare use is not, however, found in the obscurity of the law, or, despite the law asking for the German government's permission, Germany's administrations and police. It's the demand that heads of state expressly lodge a complaint. As the current case shows, this does not always come with great publicity. So there are next to no democratically elected heads of state calling for the hammer of the law to come down on Germans. The list of people who have used the law is less democratic: the British Royal Family, the Persian Shah (his repeated use of the clause has engendered the nickname “Shah Paragraph” for the law in Germany) and Pinochet have all successfully used it to demand punishment or at least to get the insult removed. In multiple cases, some prominent ones involving the Chinese President Li Peng, the US security apparatus, the Pope as well as George W. Bush, the German police practically begged the foreign dignitary in question to demand prosecution. The police, without a complaint, mind you, started gathering evidence, taking names, creating files, just in case. Odd as this law may look from the outside, in Germany it's the norm rather than the exception that injurious insults to states or heads of states are prosecuted. In fact, sometimes, the police will go beyond gathering evidence and use the clause as a way to shut down protests right away, pre-empting complaints and the courts, as happened in 2006 when Pope Benedict XVI visited Bavaria.
None of this means that Böhmermann should lose the case. In fact, his way of producing the insult was clever. He was entirely aware of the dubious legal nature of the poem and introduced it as a poem “which you can't legally read aloud in Germany.” This puts his poem outside the purview of the law on insults, in my opinion, and I'm happy to have that discussion. I'm also happy to agree that the various laws banning insults and insults to the state in Germany should be repealed, and regarding clause 103, Germany's chancellor Angela Merkel happens to agree with me. Is this an obscure law, dug out to pacify a despot on whose good will Europe's current dubious immigration policies depend? It's not.