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Am Fri, 21 Nov 2008 12:40:37 -0500 schrieb Warp:
>> It's rational. Not what I'd think is a good idea, but rational.
>
> Yeah, I see how history books advocate nazism and thus should be
> banned.
> Very rational.
They are not actually. Symbols of organisations which work against the
constitution (and particular against freedom and democracy) are banned
(And it has to be determined by the highest court in germany, that an
organization is working against the constitution). However there are
exceptions to that ban, namely §86 StGB
(3) Absatz 1 gilt nicht, wenn das Propagandamittel oder die Handlung der
staatsbürgerlichen Aufklärung, der Abwehr verfassungswidriger
Bestrebungen, der Kunst oder der Wissenschaft, der Forschung oder der
Lehre, der Berichterstattung über Vorgänge des Zeitgeschehens oder der
Geschichte oder ähnlichen Zwecken dient.
which translates to
(3) Section 1 is not valid, if the propaganda or the action is used to
educate citizens, to defend against unconstitutional tendencies, is used
for the art or the science, the research or the teaching, the reporting
over processes of the events of the day or similar purposes.
History books clearly don't fall under this, if there is not a different
problem with the book, or the judge didn't follow the law (which would a
scandal on its own). Do you remember which case you are refering to?
Maybe I could figure out, what was the real reasoning in that case.
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Am Fri, 21 Nov 2008 16:14:55 -0500 schrieb Florian Pesth:
> Am Fri, 21 Nov 2008 12:40:37 -0500 schrieb Warp:
>
>>> It's rational. Not what I'd think is a good idea, but rational.
>>
>> Yeah, I see how history books advocate nazism and thus should be
>> banned.
>> Very rational.
Actually reading the german article on that on wikipedia, it seems, that
even the most ridiculous rulings of a judge, that was a case where
someone printed shirts *against* national socialism (depicted on it was a
garbage can and a swastika above it) was overruled by the next higher
court on the grounds of that law. So all in all the law system in germany
still seems to work ;).
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Florian Pesth wrote:
> History books clearly don't fall under this, if there is not a different
> problem with the book, or the judge didn't follow the law (which would a
> scandal on its own). Do you remember which case you are refering to?
The problem is that when you let censorship go on in restricted ways, it
gets applied in increasingly less restricted ways.
http://arstechnica.com/news.ars/post/20071207-german-politician-sues-unsues-wikipedia-over-nazi-symbols.html
Granted, he shouldn't have done that:
http://arstechnica.com/news.ars/post/20071211-german-politician-may-be-charged-over-wikipedia-nazi-dustup.html
But that doesn't help if you're already spending your money defending
against the rancor of some politician that doesn't like you.
--
Darren New / San Diego, CA, USA (PST)
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Florian Pesth wrote:
> Just to clarify a bit. The law in this case (§130 StGB) is against
> "Volksverhetzung" and the paragraph relating to that is:
I think there are a number of laws related, not just this. For example,
France tried to sue Yahoo for hosting auctions of Nazi memorabilia too.
(Oh, there, see the other post.)
> The intention of the law is to prevent someone like Hitler ever gaining
> power again in germany by extremists positions (remember, he was
> elected). That sounds pretty reasonable to me.
Ah, so, because Hitler was bad, we're going to make sure you're not
allowed to advocate a political leader from a similar party? In spite of
it being a democracy? :-)
The problem with all these sorts of things is the slippery slope, and
the application in ways that the original authors didn't intend. That
always happens here: the politicians pass some overly broad law,
everyone complains it's overly broad, the politicians say "it would
never be used in that way, that makes no sense." And then you get
regular people being shipped off to foreign countries because they might
be terrorists.
--
Darren New / San Diego, CA, USA (PST)
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Am Fri, 21 Nov 2008 13:46:46 -0800 schrieb Darren New:
> The problem is that when you let censorship go on in restricted ways, it
> gets applied in increasingly less restricted ways.
>
> http://arstechnica.com/news.ars/post/20071207-german-politician-sues-
unsues-wikipedia-over-nazi-symbols.html
Well, yes, they try.
>
> Granted, he shouldn't have done that:
>
> http://arstechnica.com/news.ars/post/20071211-german-politician-may-be-
charged-over-wikipedia-nazi-dustup.html
>
It seemed to me, that the public in general in germany thought in that
case, that it was ridicoulous and that it wouldn't go through - at least
not the higher levels in the german law system. It looked like a PR stunt.
> But that doesn't help if you're already spending your money defending
> against the rancor of some politician that doesn't like you.
It's hard to compare directly to the US, because our law system is quite
different. But in principle you don't have to spend any money if you win
the case. AFAIK the loosing party and the state pay for your legal costs
(including costs for taking free days of your job). The state even
provides you with the money in advance to pay a lawyer if you can't pay
it yourself (of course it would be claimed back, if you loose the case).
What I mean to write is, it seems highly unlikely, that someone sues you
out of existance as it seems it is possible in the US (Is it? You
probably have other protections against that? Maybe on law firms, which
specialise on that cases? I think I read that in some liability cases it
is a real legal business and this law firms will take your case for free,
if it is likely that it can be won.)
I don't know how well it works, but in principle it should.
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Florian Pesth wrote:
> So all in all the law system in germany still seems to work ;).
Yeah. I think I'll just stick with a place where it's OK to advocate
what you believe in as long as you're just talking. :-)
--
Darren New / San Diego, CA, USA (PST)
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Florian Pesth wrote:
> It's hard to compare directly to the US, because our law system is quite
> different. But in principle you don't have to spend any money if you win
> the case. AFAIK the loosing party and the state pay for your legal costs
> (including costs for taking free days of your job).
That sounds like a better system. Ours seems to encourage people getting
their way by filing lawsuits they know they'd lose if the other side had
the money up front to fight it.
> The state even
> provides you with the money in advance to pay a lawyer if you can't pay
> it yourself (of course it would be claimed back, if you loose the case).
We do get that, even if you lose the case. Or rather, the government
assigns a lawyer to you, which is similar but not as good.
> What I mean to write is, it seems highly unlikely, that someone sues you
> out of existance as it seems it is possible in the US
Yep. That's sadly possible. I don't think anyone thinks it's a good idea
on a personal level, altho of course large companies like it.
You don't get that as much with criminal cases, because the government
has to supply a lawyer in those cases. Most people think those lawyers
aren't as good as the ones you pay for yourself, tho.
> I think I read that in some liability cases it
> is a real legal business and this law firms will take your case for free,
> if it is likely that it can be won.)
This is more "we'll countersue them for sueing you, and we'll take some
of the money you win if you win" sort of thing.
Some lawyer do "pro bono" work, which means they spend some of their
time for free helping those who need it.
But it's by no means cheap here to defend against any sort of civil or
criminal case that you win.
--
Darren New / San Diego, CA, USA (PST)
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Am Fri, 21 Nov 2008 13:51:13 -0800 schrieb Darren New:
> Ah, so, because Hitler was bad, we're going to make sure you're not
> allowed to advocate a political leader from a similar party? In spite of
> it being a democracy? :-)
No, no, no ;). Basically it's just forbidden to organize a mob randomly
murdering other people. If you lead a party which includes peoples of
mobs randomly murdering other people, but you don't tell this people
explicitly to murder, nothing prevents you of becoming Bundeskanzler (if
you get elected). The NPD exists and everyone knows, that there are Nacis
in it (and they are the mobs in Germany murdering randomly people). But
despite the failure to forbid this party was mainly due to other reasons
(german secret service had to many people in it) it is highly doubtable,
if the NPD could be forbidden on grounds of that law. Actually the
majority of current politicians right now are against forbidding them, on
the grounds, that it would legally not go through.
>
> The problem with all these sorts of things is the slippery slope, and
> the application in ways that the original authors didn't intend. That
> always happens here: the politicians pass some overly broad law,
> everyone complains it's overly broad, the politicians say "it would
> never be used in that way, that makes no sense." And then you get
> regular people being shipped off to foreign countries because they might
> be terrorists.
Well, the judges in germany are very independent and if they think the
law is overly broad and unconstitutional, they don't apply it (Ok, don't
quote me on the technical process of that - but in practice it means
going back to the drawing board for the politicians). If the politicians
make unconstitutional laws they will be sacked at some point (sometimes
it takes the highest court - but independence of that court is taken very
seriously. While I agree, that slippery slope is a problem in a lot of
cases (surveillance laws for example are going overboard right now) in
general it levels out after some time if people notice that they went
over board. BTW, I found that blog of an american law professor living in
germany quite interesting (he also writes about general stuff, but the
posts about the law made some differences clearer to me - for a german
the american law system looks ridiculous at first sight. However I think
that has mostly to do with a lack of knowledge of the details. Maybe it
is the same vice versa.):
http://andrewhammel.typepad.com/
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Am Fri, 21 Nov 2008 14:20:04 -0800 schrieb Darren New:
> Florian Pesth wrote:
>> So all in all the law system in germany still seems to work ;).
>
> Yeah. I think I'll just stick with a place where it's OK to advocate
> what you believe in as long as you're just talking. :-)
It is here, just think how to say it first and you can express
everything :)
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Florian Pesth wrote:
> No, no, no ;). Basically it's just forbidden to organize a mob randomly
> murdering other people.
Oh, same here. I don't think anyone thinks that organizing a lynch party
should be legal. Arguing that organizing a lynch party should be legal
is what is leagl.
> Well, the judges in germany are very independent and if they think the
> law is overly broad and unconstitutional, they don't apply it
They're supposed to do that here too. It winds up costing someone a lot
of money, and everyone without money who gets involved before the law is
overturned winds up being screwed. Sounds like Germany has a better system.
> http://andrewhammel.typepad.com/
I'll check it out. :-)
--
Darren New / San Diego, CA, USA (PST)
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