Political Justice in Germany: On the Prosecution of Stefan Niehoff

Last week, the German retiree Stefan Niehoff was fined €825 for four memes he had posted or, for the most part, reposted on his X (formerly Twitter) account and that made use of “anti-Constitutional”, i.e. Nazi, symbols. The use of the latter, including, for instance, the swastika or the raised-hand Nazi salute, is prohibited in Germany under §86a of the German Criminal Code.

But the problem is that, as presiding judge Patrick Keller admitted, the use of the symbols in the supposedly incriminating memes was critical. I cannot say “clearly” critical—even though it clearly was—since the claim that the critical intent was not “straightaway obvious” (auf Anhieb zu erkennen) is the wafer-thin basis upon which Judge Keller found Niehoff guilty, nonetheless. As one clever German X-user put it in a tweet, “How many years of law does one have to study in order not to see it?”

Indeed, it is not even accurate to say that Niehoff or the tweets he reposted “used” Nazi symbols. For the most part, the tweets merely reproduced historical photos in which other people are seen using them: namely, giving the Nazi salute. For example, Niehoff reposted the below tweet showing Catholic clergy raising their right hands in the salute in 1933. The ironic comment of the poster: “I find that the Church always has an honourable position on political systems.”

The tweet is a reply to a tweeted video calling for a demonstration against the “far right,” principally meaning the opposition Alternative for Germany (AfD) party, at Potsdam’s St. Nicholas Church. The original poster appears to have mistaken the speaker in the video as himself a clergyman due to his long, black, smock-like garb. The speaker was in fact the then mayor of Potsdam, Mike Schubert.

The same photo is available at the website of the German Resistance Memorial Center in Berlin here. The somewhat understated caption reads: “When Hitler was appointed Reich Chancellor in January 1933, the Catholic Church in Germany was willing at first to demonstrate broad political loyalty to the new state.”

If it is not illegal under German law for the museum to use the photo in its exhibit or on its website, then how is it illegal for the original poster, alluding to the same historical facts, to have posted it on X—much less for Niehoff to have reposted it? Taken to its logical extreme, the jurisprudence of the court would require all contemporaneous images containing symbols of the Nazi regime to be banned, thus ensuring that no lessons could ever be learned from them.

Niehoff was also found guilty for reposting a photo of Hitler shaking hands with a clergyman on the background of “men in Wehrmacht uniforms” raising their hands in the Nazi salute—or, as it is known in German, the “Hitler salute.” A report on the judgment in the German alternative media Nius does not provide further details on the tweet containing the photo—whether, for instance, it included text—or the context. 

But, as Niehoff’s lawyer Marcus Pretzell has previously explained to the daily Die Welt, such tweets were intended to respond to the German churches’ calls to boycott the allegedly “far right” AfD: the obvious point being that the churches, given their own record under the Nazi regime, are perhaps not the best-placed institutions to be calling others “Nazis,” in effect.

The image in question is presumably the photo below or another similar photo that captures the handshake.

Images of the handshake are widely-available on the internet from innumerable German news sources such as NDR, Deutschlandfunk and Die Welt; and the same photo is also available here, for instance, in the Holocaust Encyclopedia of the United States Holocaust Museum. 

The caption in the Holocaust Encyclopedia reads: “Adolf Hitler greets Reich Bishop Ludwig Mueller at a Nazi Party Congress. Roman Catholic Abbot Alban Schachleiter stands between Hitler and Mueller. Nuremberg, Germany, September 1934.” The caption on the website of the German public radio Deutschlandfunk includes a quote from a contemporary church service: “Whoever does not believe in Adolf Hitler cannot believe in a Lord God!”

Yet again, if it surely cannot be illegal for news publications or museums or monographs to show images of the handshake despite the Nazi salutes in the background, then how can it be illegal for Niehoff to have reposted the photo on X in order precisely to recall the same ignominious facts about the churches’ behaviour under the Third Reich as are documented in the aforementioned sources? 

If the answer is that this reminder is not politically expedient for German authorities in the context—and there is no other apparent justification—then this is obviously not a matter of justice per se, but rather of purely arbitrary, political justice: something for which the Nazis, incidentally, were also well-known.

A third of the four posts for which Niehoff was found guilty is reported to consist of a tweet-reply containing a photo of Adolf Hitler and the words “Someone like this?” From Niehoff’s other tweets and the judge’s admission, we can assume the context was likewise critical. But, according to Nius, the indictment, oddly enough, says nothing about the content of the tweet to which Niehoff was replying.

Finally, the last tweet for which Niehoff was found guilty is the only one that did not involve a historical photograph. Instead, it involved an imaginary cover of the German news weekly Der Spiegel featuring a photoshopped image of Green party politician Katharina Schulze and the headline “The Green Reich”. 

The imaginary magazine cover can be seen on the right below. It is clearly not very flattering to Schulze. But nor is the real cover of the German weekly Stern on the left very flattering to Donald Trump, and the headline Sein Kampf—“His Fight”, a play on Mein Kampf— is, if anything, even more provocative and indeed invites direct comparison to Hitler.

So, as many German commentators have pointed out, if the publication by Stern of the fake image of Trump giving the Nazi salute is not a violation of German law, then how can Niehoff’s reposting of the fake image of Schulze be one? The double standard is plainly obvious.

The point of the prosecution of Stefan Niehoff and other purveyors of alleged online ‘hate’ appears to be to show that German authorities are cracking down on “right-wing extremism.” In current German usage, the latter term has, of course, the strong connotation of (neo-)Nazism. Never mind that the historical Nazis thought of and called themselves “socialists.” The party’s acronym, the NSDAP, stands for the National Socialist German Workers Party. And never mind that the very posts for which Niehoff was convicted make plainly obvious that he is, if anything, anti-Nazi.

According to a well-known anecdote, before fleeing Germany in 1933, the director Fritz Lang is supposed to have been offered the post of the head of the Reich Film Chamber by none other than Nazi propaganda chief Joseph Goebbels. Lang objected to the proposition by noting that it might be a problem that his mother was, after all, Jewish, to which Goebbels is famously supposed to have replied, “Herr Lang, we decide who is Jewish!”

When it comes to the AfD and AfD supporters or sympathizers like Stefan Niehoff, the not dissimilar attitude of current German authorities would appear to be: “We decide who’s a Nazi.”