When Words Become Dangerous – between Grundgesetz and History.

Debates about free speech in Germany often flare up where history, law, and present-day politics collide. A recent ruling by the Higher Administrative Court of Münster has done exactly that, reopening the question of what kinds of political speech a democratic state must tolerate—even when that speech targets the very existence of another state. The case touches on more than legal technicalities; it forces Germany to confront the tension between constitutional principles and its unique historical responsibility.

Freedom of speech?

The Higher Administrative Court of Münster recently ruled that Germany may not, as a matter of principle, prohibit people from denying Israel’s right to exist (Ref. 15 B 1300/25). Just as it may not prohibit denying the existence of any other state. In principle, it cannot be forbidden if people take to the streets in this country demanding the destruction or abolition of, say, Ukraine – or Poland, to mention just a few historically sensitive examples.

The background to the court’s decision was a so-called pro-Palestinian demonstration that the Düsseldorf police headquarters wanted to pre-emptively restrict by prohibiting chants calling for the destruction of the State of Israel. Even this mild intervention was too far-reaching for the court. One of these chants is “There is only one state – Palestine 48,” which is shouted regularly on German streets. The police at least wanted to limit it so that the chant could only be uttered once at the beginning of the demonstration. In other words: only a little bit of “calling for destruction.”

But even this minimalist restriction was deemed unconstitutional. According to the court, demonstrators must be allowed to call for destruction as often as they wish. The reasoning behind this: according to the Higher Administrative Court of Münster, people must be allowed to “critically engage with the founding of the State of Israel,” and a “peacefully implemented change of existing circumstances” is also protected by freedom of expression. In other words, these chants are not fantasies of annihilation but calls for “peaceful change.” What such a “peaceful change” is supposed to look like when its goal is, in fact, the elimination of an existing state was left open – and seems, given the political reality, more like a theoretical sleight of hand than a realistic category.

Legally speaking, the ruling is not entirely far-fetched. Under the German Grundgesetz, the Basic Law, freedom of expression may only be restricted by so-called general laws – that is, laws that do not target specific opinions or political content but apply independently of the subject matter. Criminal law may not prohibit someone from holding a particular political view simply because it is deemed wrong, dangerous, or reprehensible. Against this backdrop, prohibiting specifically “Israel-related” slogans is difficult: it would be a restriction based on the content of the opinion, and the logic of the Basic Law forbids exactly that. Paradoxically, this leads to a situation where, in the very country of the perpetrators, one may call for the abolition of the state that was created, among other things, as a refuge for Jews after the Holocaust. And even more paradoxically: under the system of the Basic Law, one could argue that a general ban on calling for the destruction of other states might be possible, while a ban specifically tied to Israel would not be. Meaning: calls for the destruction of states such as Ukraine or Poland could, in principle, be prosecuted because they would be general calls for destruction. With Israel, things are different. Absurd as that may be.

One might therefore assume an easy solution: simply ban all calls for the destruction of states.

Why should anyone be allowed to demonstrate for the disappearance of a state at all?

But even if one were to take that path, a crucial point would remain: Israel is not just any state. Its existence is uniquely bound up with Germany. And here we see that legal principles and historical reality sometimes diverge. The German legal system is perfectly capable of making exceptions when it comes to the Nazi era. The Federal Constitutional Court has confirmed, for example, that approving or even merely endorsing the Nazi regime may be criminalized, even though this is essentially a ban on the content of a specific political position. And such content-based bans are normally not allowed under the Basic Law. Holocaust denial is also a criminal offense in Germany, even though denying other genocides is entirely legal. These are conscious, politically intended exceptions, justified by the unique injustice and historical context of the Nazi period. In these matters, different legal standards apply – when it comes to National Socialism, the rules are different.

Interestingly, the state has also intervened in other recent cases. After the start of Russia’s war of aggression, people were convicted because wearing the “Z” symbol was seen as approval of an illegal war of aggression. The symbol was interpreted as expressing support for Russia and thus for the Russian attack. Even here, one can legally argue about whether this is truly a general rule or in fact a content-based prohibition. But what this example shows is simple: where political will exists, the law finds a way.

And that is precisely why it seems all the more contradictory that calls for Israel to disappear remain legal. If the “Z” can be punishable because it might be understood as approval of a war of aggression – why should a slogan calling for the abolition of the world’s only Jewish state still be protected by the Basic Law?

In truth, this is a question of resolve. Germany regularly proclaims “Never again” – yet in precisely the place where historical responsibility is most directly concerned, the law leaves a gap. We celebrate a culture of remembrance, but legal consequences are missing. That is why we need a political decision that says, not only symbolically but also legally: calls for the destruction of a state whether it's Ukraine, Poland, or Israel, have no place in Germany.