Undesirable Posters and Dubious Symbols: Anglo-German Legal Solutions to the Display of Right-Wing Symbolism and Propaganda
| Published date | 01 April 2011 |
| Date | 01 April 2011 |
| Author | Peter Rackow,Christopher J. Newman |
| DOI | 10.1350/jcla.2011.75.2.695 |
| Subject Matter | Article |
Undesirable Posters and Dubious
Symbols: Anglo-German Legal
Solutions to the Display of Right-
wing Symbolism and
Propaganda
Christopher J. Newman* and Peter Rackow†
Abstract This article seeks to examine the approach of the judiciary in
both England and Germany in respect of certain manifestations of ex-
treme right-wing images. The article will start by looking at the legislative
framework governing the display of such images within the two jurisdic-
tions. Following on from this, there will be an examination of the doc-
trinal and rights-based arguments that arise when such offences are dealt
with by criminal prosecution. The article will then draw together different
decisions of appeal courts in the two jurisdictions and conclude the
discussion by noting both the similarities and divergent practices within
the respective legal systems.
Keywords Public order; Germany; Extreme right-wing material;
Human rights; Symbols
The tension that exists between notions of freedom of expression and
the limits that a civilised society should place on undesirable discourse is
a path well travelled by legal academics.1Such discussions within an
English context predominantly focus on the way in which the judiciary
seeks to balance the competing rights of those parties who wish to
express their beliefs and those who believe such expressions are beyond
that which society should tolerate.2Indeed, within such discussions, it
has been stated that ‘. . . while the ideal of the dissenting speaker pro-
vides an appealing hypothetical, such figures often prove less attractive
when the word is made flesh’.3Never is this more apparent than when
society has to deal with those who disseminate extreme right-wing
imagery and symbolism.
Recent German case law, however, regarding the displaying of
imagery with somewhat loose but nonetheless tangible association to
* Senior Lecturer in Law, University of Sunderland; e-mail:
chris.newman@sunderland.ac.uk.
† Professor, Deutsche Hochschule der Polizei; e-mail: Peter.Rackow@dhpol.de.
1 There are numerous, comprehensive discussions on this within the English legal
system and beyond. Perhaps the definitive is E. Barendt, Freedom of Speech, 2nd edn
(Oxford University Press: Oxford, 2009).
2 See for further explanation of this A. Geddis, ‘Free Speech Martyrs or Unreasonable
Threats to Social Peace?—‘Insulting’ Expression and Section 5 of the Public Order
Act 1986’ [2004] PL 853 at 854. Within an Australian context, A. Stone, ‘The
Limits of Constitutional Text and Structure Revisited’ [2005] UNSWLJ 50.
3 Geddis, above n. 2 at 854.
142 The Journal of Criminal Law (2011) 75 JCL 142–155
doi:10.1350/jcla.2011.75.2.695
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