German court rules in favor of artist’s free speech rights in Nazi mockery case
On Wednesday, a German court acquitted artist Jonathan Meese, who had been accused of twice using the Nazi salute at a forum on “megalomania in the art world” last year. The prosecution had asserted that, during his presentation at the University of Kassel, Meese violated Section 86a of the German Criminal Code, which prohibits “the use of symbols of unconstitutional organizations.” Flying the flags, displaying the coat of arms, or using the greeting of the Third Reich all typically fall under this provision.
“It is clear that the accused does not identify with National Socialist symbols or with Hitler, rather he mocks them,” said the judge. The decision potentially represents a sea change in the way the German government treats public displays of Nazi iconography — all forms of which have been effectively banned since the end of World War II. Because “irony can be…traced in his actions,” the judge argued, Meese’s gestures were not technically Nazi salutes. The ruling suggests German artists could be free to appropriate Nazi symbols and gestures so long as they do so in a sufficiently critical context. In 2007, the German Federal Court of Justice allowed for the use of crossed-out swastikas by anti-fascist groups because they were clearly not intended to promote National Socialism.
Meese’s appropriation of the Nazi salute was not as clear-cut as a cancelled swastika. He and his attorneys had claimed that his performance fell under an exception to the ban because “the act serves to further civil enlightenment.” The judge agreed, deciding that Meese’s actions were not criminal because the salute was not done to foster sympathy for the Nazi party, but “in order to promote art.”
“Art has triumphed,” Meese said after hearing the verdict. “Now I am free. Art must be free.”