Germany’s likely new coalition government, expected to be formed between the conservatives (CDU) and the Social Democrats (SPD), is planning a law that could effectively ban politicians deemed ‘unpleasant’ or ‘populist’ from standing for election. A draft coalition paper, presented to the press last week, proposes a significant tightening of the country’s already repressive ‘incitement of the masses’ law. Under the proposal, politicians convicted more than once under the law would no longer be allowed to stand as a party candidate.
Germany’s law against incitement of the masses (Section 130 of the Criminal Code) has long been a tool to regulate unwanted speech. Its roots date back to the German Empire, when it was used to silence socialists and was known as the ‘class warfare paragraph.’ Revised in 1960 following a rise in neo-Nazi activity, the law has undergone a wave of amendments in recent decades, some prompted by EU requirements. The offence is committed when
anyone disturbs the public peace by inciting hatred, violence and arbitrariness against national, racial, religious or ethnic groups or against sections of the population or against an individual because of his or her membership of a particular group.
Even without the planned tightening, this law represents a serious attack on freedom of expression. The number of people convicted has skyrocketed, exceeding 5,000 in 2024 alone. Among them was Islam critic Michael Stürzenberger, who was sentenced just six months after being the victim of an Islamist knife attack in May 2024 that left one policeman dead. A pensioner who criticised Germany’s migration policy in a Facebook post was also among those convicted under the law. The post said:
We need skilled workers, not asylum seekers who just want to make a nice life here without respecting our values and culture. We don’t need idlers and scroungers, and we certainly don’t need knife artists and rapists.
The court sentenced the woman to 150 daily fines of €53 each, totalling €7,950.
The history of this law—its transformation from targeting neo-Nazi activity to silencing government critics—is a textbook example of the slippery slope of speech restrictions. If the latest tightening is passed, its target is unmistakable: The right-wing populist AfD. No other party’s candidates face charges under Article 130 with such regularity. Thus, the public prosecutor’s office in Göttingen is currently investigating AfD state parliamentarian Vanessa Behrendt for describing the rainbow flag as a “symbol for the machinations of paedophile lobby groups.” The AfD leader in Thuringia, Björn Höcke, is also under investigation after he responded to a fatal knife attack by a Somali immigrant with controversial comments about immigrants and Islamist extremism.
The coalition justifies its latest proposal as “strengthening the resilience of democracy.” This idea that democracy must be protected from its citizens has deep roots in Germany’s post-war “defensive democracy” doctrine – a doctrine based on eliminating perceived threats to democracy at its earliest stages. However, the constant tightening of §130 has revealed this doctrine for what it truly is: an authoritarian assault on free speech, and an attempt to shield the status quo parties from criticism and popular pressure.
Both members of the likely new coalition performed dismally in the February elections, with the SPD winning just 16.4% of the vote (a historic defeat) and the CDU winning just 28.6% (its second-worst result ever). The AfD, however, doubled its vote to become Germany’s second largest party—despite relentless efforts to portray the party and its politicians as ‘unelectable’. (In addition to charges of incitement, the AfD has been monitored by Germany’s Office for the Protection of the Constitution). Since the election, polls show the AfD’s popularity increasing even more—at the expense of the CDU. This success has unsettled the German establishment. Now that all strategies to weaken the populist party have failed, the government is clearly planning to escalate tactics to keep it out of politics.
Many CDU voters had hoped for change, and that the new government would reverse the previous government’s restrictive approach to freedom of speech. These hopes appear to have been in vain. Attempts to ban politicians of the largest opposition party from standing for election are transparently undemocratic. As former constitutional court judge and legal expert Christoph Degenhart noted of the coalition’s draft paper: “The tendency to use criminal law to restrict freedom of expression is highly problematic”. It is also an expression of the mainstream parties’ contempt for the electorate, which they believe must be confined to their own narrow politics.
Freedom of speech, the right to form parties, the right to propagate controversial views—and the right of citizens to vote for the candidates they believe best represent their interests are the pillars of democracy. This new law, if it comes into force, will be a serious attack on these democratic principles. It must be resisted at all costs.
