Is There a Right to Nazi Propaganda?

Jakob Trescher and Daron Chiu

May 7, 2025

At the Munich Security Conference, J.D. Vance asked whether “the West” was still fighting for common values, given the European handling of such basic democratic principles as elections, freedom of expression, and democratic competition between parties. This question provoked outrage among German politicians and the media.

Patriotism, not to mention national pride, is generally frowned upon in Germany. Nevertheless, there is a strange German pride in the fact that Germans are not proud of Germany because the “right lessons” were learned from history after the Second World War [1]. Vance’s speech attacked precisely this pride [2]. An American of all people, with his exaggerated patriotism, presumes to tell Germans that they do not “dare to do Democracy” enough [3].

As if in defiance, the newly drafted coalition agreement between the conservative CDU/CSU and the SPD contains the following passage [4]:

As part of strengthening the resilience of our democracy, we are arranging to withdraw the right to stand for election in the event of multiple convictions for incitement to hatred (Volksverhetzung). We want to combat terrorism, anti-Semitism, hatred and agitation even more intensively and, in particular, strengthen penalties for incitement to hatred (Volksverhetzung). We are examining the extent to which criminal liability can be introduced for public officials and soldiers who share anti-Semitic and extremist incitement in closed chat groups in connection with the performance of their duties.

On the one hand, these proposed laws appear to be capitalist policy directly implementing Leftist demands — “hate speech is not an opinion” — while at the same time being directed against the “Left,” e.g. in the accusation of antisemitism employed against student activists.

If you look at France, it’s hard not to see withdrawing somebody’s right to run for political office as a weapon against political opponents. Banning Marine Le Pen from running in the next French presidential election has been hailed by the Left as a victory for democracy, but this encroachment on the right-wing populist's civil rights leaves a stale aftertaste. Would she have been convicted if she did not have a good chance at winning the presidency in two years? Hardly. Is the conviction about legal justice or political power?

At the German federal level — unlike in the U.S. — the right to stand for election can already be revoked in cases of high treason, treason, electoral fraud, and particularly serious cases of corruption by elected officials. Until now, it was impossible to revoke this right on the mere basis of speech. In order to understand how we got to this most recent restriction of civil rights, we should take a look at the history of the Federal Republic of Germany from its beginnings.

Liberal Democracy after 1945

In contrast to Vance's speech, Federal President Frank-Walter Steinmeier looked at this question two years ago with fundamental confidence in the self-image of German democracy. During the ceremony to mark 175 years of the National Assembly in St. Paul's Church, Steinmeier claimed that today, unlike at the time of the German Revolution of 1848/1849, we know that democracy and liberalism belong together [5]. His readiness to emphasize their connection suggests it not to be the case. The amount of hand wringing around these terms and their political content seems to suggest instead that this consensus can hardly be assumed, nor that it can be unambiguously inferred from the Federal Republic's conception of statehood. Rather, a look at the history of the Federal Republic reveals that the meaning of liberal democracy had to be put up for periodic negotiation. In the liberal democracy we call the Federal Republic, curtailing civil rights and democratic participation always posed a double-edged sword. On one side, we need to restrict basic civil rights in order to preserve a fundamentally free and democratic order, as required by the Basic Law of the land. These very restrictions, however, call into question whether such a free and democratic order is fundamentally possible at all.

Someone writing a history of the German Left might, for example, look at the “Radicals Decree” (Radikalenerlass). At the end of the 1960s and the beginning of the 1970s, the German public was preoccupied with the actions of an increasingly militant section of the Left. There were also fears that anti-constitutional sections of the Left were infiltrating state institutions. So, the Brandt government decided in 1972 to make loyalty to the constitution a criterion for employment in the civil service — a measure that could seem justified after the first terrorist attacks by the Baader-Meinhof Group [6]. Among other things, prospective teachers were barred from practicing their profession for ideological reasons. The resulting occupational bans showed a serious democratic deficit in the Federal Republic for large sections of the German Left.

However, looking for the origins of Germany’s democratic deficit from the selective perspective of the German Left would be myopic. Neither the Radicals Decree nor the KPD ban of 1956 [7] should be seen as the starting point of what could curiously be described as anti-democratic measures to protect democracy. Rather, the restriction of democratic participation has accompanied the Federal Republic since its inception. The reason for this cannot, obviously, be dismissed out of hand. The crimes of the National Socialist dictatorship and the World War demanded a form of democratic culture in the new Republic, forming out of the western occupation zones, that was completely unfamiliar to Germany. A people that almost without exception participated in National Socialism, or only passively opposed it, was supposed to be ready to integrate into the liberal order of the West within a few years, given the Soviet threat. However, it was precisely during the founding period of the Bonn Republic that German liberalism wanted to assert itself in a way that might seem counter-intuitive. The Liberal Democrats who came together after the war to form the Free Democratic Party (FDP) were probably the most outspoken in their call for an end to the denazification introduced by the victorious powers, citing civil rights.

After the end of the war, hundreds of thousands of Germans in the occupation zones were either imprisoned or excluded in some way from participation in public life due to their role in National Socialism. Dealing with this was one of the challenges of the new Federal Republic. It would be too facile to reduce the notorious end (Schlussstrich) [8] to denazification, which the FDP demanded for the first federal election in 1949, to National Socialist networks in the party [9]. Pointing out the illiberal nature of denazification as a legally untenable restriction of civil rights was not just the polemic of a defeated nation, but had a legitimate place in bourgeois thought. The liberal concept of the citizen demanded it. As bitter as it may seem, the rehabilitation of former National Socialists was not just a logistical necessity for post-war society — there was a lack of qualified people in business and administration — but ultimately a compelling demand of liberalism itself.

Free Society

Repeated recourse to state coercion to ensure ideological integrity in the Federal Republic may reinforce the suspicion that, to this day, a culture of democracy cannot be counted on in Germany. If society in Germany were really free, then the need for state authority to constantly correct and supervise the formation of its opinions would really have disappeared.

To find a way out, we have to openly acknowledge the antinomical character of liberal democracy, which becomes apparent in its crisis. Liberalism cannot be achieved without restrictions on democracy, and the democratic process cannot be carried out without illiberal measures. These dual and contradictory desiderata bear witness to the crisis of autonomy. The free, bourgeois subject — both individuals and their society as a whole — seems unable to simply give itself its own law, and is thus distrusted as such. This distrust of the citizen, who did not emancipate himself completely in the imperial era, nor was able to prevent National Socialism, was institutionalized in Germany and became the hallmark of bourgeois politics.

A classic theory of the actually free bourgeois subject, on the other hand, can be found in Immanuel Kant's writing on the question “What is Enlightenment?”, a piece of 18th-century German Enlightenment long since canonized. “Argue as much as you like, and about whatever you like; but obey!" [10] says Kant’s pantomimed King Frederick the Great. This sentence is perplexing after the experiences of the 19th and 20th centuries. Yet, the concept of freedom revealed in it is, in fact, an indictment of those centuries. In the coming of age of bourgeois society, when its progress seemed incontrovertible, this sentence could appear unproblematic from both angles. Freedom of speech did not threaten the polity, as public reason was expressed in its subjects. The bourgeois state, on the other hand, could be nothing other than a tool of public reason expressing itself in its subjects.

The Contract of Citizens and National Socialism

The question of what form of government would be adequate to society was, strangely, of secondary importance for Kant. His Enlightenment treatise does not even mention democracy as a possible basis for developing the rights of society and its civil law. Franz Neumann classified the classical German theory of law and rights as “liberalist-constitutional,” in contrast to the English “democratic-constitutional” theory.[11] The underlying political agreement of the German bourgeoisie with absolutism already demonstrates a peculiarity in the history of German liberalism that must seem foreign to us today. The leaders of bourgeois society were indifferent to their form of government because they were confident in bourgeois society itself.

This trust of society in itself was soon damaged as the 18th century gave way to the crisis of bourgeois politics in the 19th. Franz Neuman analyzed this shift in “The Change in the Function of Law in Modern Society” (1937) using Marxian terms. The leaders of bourgeois society became a class in society opposed to another class in society, the bourgeoisie owning the means of production and the workers owning their labor, now in seeming antagonism. In the era of the Bismarkian Empire, the bourgeoisie became facemasks for monopoly capital. For Neumann, this change in the economic role of the bourgeoisie meant the loss of the legal person as the undisputed basis for the administration of justice. The crisis of the bourgeois subject in monopoly capitalism was reflected in the law itself [12]:

Under monopolistic capitalism, private property in the means of production as the characteristic institution of the entire bourgeois epoch is preserved, but general law and contract disappear and are replaced by individual measures on the part of the sovereign.

This development culminated in National Socialism. In industrial production, for example, the “obligation of faithfulness” (Treuepflicht) between workers and entrepreneurs took the place of contracts [13]. One could easily argue that what applied to the workplace applied to society as a whole. The Führer’s command (Führerbefehl) became a principle of law in the crisis of the contractual relationships. In the authoritarian state, unconditional obedience replaced the general contract among citizens [14].

From incitement of classes to incitement of the people

This background should make suspect the current attempt by the German government to make political participation contingent on one’s political opinions. If the answer to National Socialism was, of all things, to allow political participation but with reservations, then the post-war order was indeed weaker in this respect than it pretended to be. One might get the not unjustified impression that the democracy was inauthentic, which could all the more justify objections to it from those not wanting to take it seriously in the first place. In this way, what Marxism had once wanted to make good on and transform through radical politics was simply codified: the crisis of the bourgeois subject and with it the emergence of class antagonism.

It is all the more noteworthy that "incitement to hatred" (Verhetzung) as a legal term came to prominence in the era of class struggle. As the labor movement in Germany strengthened in the late 19th century, freedom of speech was curtailed with explicit reference to class antagonism. The penal code of the German Empire, founded in 1871, contained a paragraph on so-called “incitement of classes” (Klassenverhetzung) [15]. This paragraph lives on in the law of the Federal Republic today. The paragraph remained as such, but "incitement of classes" has been substituted with “incitement of the people” (Volksverhetzung).

We should take this continuity between the paragraphs banning “incitement of classes” (Klassenverhetzung) and “incitement of the people” (Volksverhetzung) seriously. It shows in a single example how German politics has changed. The crisis of bourgeois politics was codified. The bourgeois legal subject could no longer unequivocally represent the basis for social coexistence, and this loss of the legal subject was confirmed by law. This seems to be the conclusion that guided German law through the last two centuries. However, it is noteworthy that, amidst this continuity between the 19th century and today, the concept of class disappeared as a conscious concern of politics. The focus shifted from “classes” to “the people”. This disappearance of class as an object of concern for the German state should give anyone interested in reforging its politics pause for thought.

Self-imposed tutelage

The need to include a paragraph outlawing “incitement to hatred” (Verhetzung) is ideologically justified by the German culture of remembrance. Germany's National Socialist past is seen as “hour zero.” Not, however, as an end and new beginning, as is commonly believed, but as the starting point for all thinking about the present. Hence, the left-wing duet of anti-fascist “never again fascism” and anti-imperialist “never again war.” Why should the AfD be banned? Why is it even possible to ban parties? Why is the state allowed to monitor its own citizens? Because Hitler.

This self-image as a “nation of perpetrators,” the fundamental mistrust that German society has of itself, that it perhaps was never ready to regulate itself in the liberal sense and must always remain in tutelage, is probably the greatest expression of bourgeois society disintegrating in capitalism. Theodor W. Adorno wrote as much in “The Meaning of Working Through the Past” [16]:

In Germany, one often hears Germans among themselves making the peculiar remark that they are not yet mature enough for democracy. They make an ideology of their own immaturity, not unlike adolescents who, when caught committing some violent act, talk their way out of it with the excuse that they are just teenagers. The grotesque character of this mode of argumentation reveals a flagrant contradiction within consciousness. The people who play up their own naïveté and political immaturity in such a disingenuous manner on the one hand already feel themselves to be political subjects who should set about determining their own destiny and establishing a free society. On the other hand, they come up against the limits strictly imposed upon them by existing circumstances. Because they are incapable of penetrating these limits with their own thought, they attribute this impossibility, which in truth is inflicted upon them, either to themselves, to the great figures of the world, or to others. It is as though they divide themselves yet once more into subject and object. . . Starting from the phrase that everything depends on the person, they attribute to people everything that in fact is due to the external conditions, so that in turn the conditions remain undisturbed. Using the language of philosophy, one indeed could say that the people’s alienation from democracy reflects the self-alienation of society.

This argument can still be found today. The notion that Germans cannot be trusted is (usually) not an ethnic or cultural explanation. Much to the contrary, the “lesson of 1933–45” has become universally valid. Not only should Germans have no right to display “anti-constitutional” symbols like swastikas and Hitler salutes; people say Americans shouldn’t either [17]. The 20th century showed what happens when democracy does not defend itself. “Defending democracy” became tantamount to forfeiting the basic rights of opposition politicians like Björn Höcke because Hitler [18].

Banning the AfD for the sake of democracy

And thus we come to the skirmish on X between the U.S. Secretary of State Marco Rubio and the German Foreign Office. The AfD has been classified by the German domestic intelligence service (the Verfassungsschutz) as “certainly right-wing extremist” — meaning the party will be subject to increased spying and procedures to ban it. In response to Rubio’s criticism that surveillance of the largest opposition party was undemocratic and “tyranny in disguise,” the German counterpart replied: “We have learnt from our history that rightwing extremism needs to be stopped.”

The state's restrictive measures are directed not only against parties it classifies as right-wing extremist but also against private individuals posting on the internet. Conservative media paid particular attention to a case where a right-wing publicist received seven months’ probation for sharing a meme in which the German SPD interior minister holds up a sign reading “I hate freedom of speech” [19]. The prosecution of these “offenses” by private individuals, which would be protected by the 1st Amendment in the U.S., are by no means isolated cases. Early morning house searches warranted by memes are haloed as a service to civilization [20].

A pillar saint, still invoked repeatedly in debates around the culture of remembrance, is, of all people, Theodor W. Adorno. Much of his criticism of the repression of the Nazi past has been neutralized by the New Left. His point, nevertheless, that the mobilization of the masses during the Nazi era was also their democratization, is certainly a sore one for many today [21]:

One can surely surmise that democracy is more deeply rooted now than it was after the First World War: in a certain sense, National Socialism — anti-feudal and thoroughly bourgeois — by politicizing the masses even prepared, against its will, the ground for democratization. The Junker caste, as well as the workers’ movement, have disappeared. For the first time, something like a relatively homogenous bourgeois milieu has developed.

The Left and civil liberties

Restrictions on freedom of expression are not a particular type of “German poverty” but express a larger overall context. While the American Constitution is a product of the bourgeois revolution and therefore gives highest expression to the dynamism of civil society, the German Constitution post-1945 can no longer be liberal. The discontents in society caused by the capitalist undermining of civil liberties make the Bonapartist state necessary. Otherwise, we would live in constant civil war-like conditions, which must be prevented in the interests of the status quo. For the sake of order.

Calling for order is not itself authoritarian. Citizens want to go about their daily lives in peace. When Pax Americana introduced an era of relative peace, one of the products of this peace was the illiberal German Constitution.

Bourgeois freedom — the freedom of society and its individuals — has become self-contradictory. As a result, from today's perspective, the 20th century must seem a century that contributed nothing to human emancipation. The 20th century wanting to whisper in our ears today that there is no right to Nazi propaganda expresses our authoritarian present, a present characterized by the failure of left-wing politics. That the Left is neither able nor willing to defend civil liberties is an obstacle to truly emancipative politics today. That is why we must not and cannot forget the 20th century. Europe, and within it Germany, is the cynical product of this crisis of global bourgeois society.

Translated from the German by C. Montgomery.

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[1] In a NYT opinion piece, Jan Böhmermann, the German public television presenter popular with Radlibs, poked fun at Germany's coming to terms with the past with millennial-typical post-irony but only wanted to show off his own “historical learning”. See The New York Times, "Germany’s Far-Right Comeback," February 22, 2025.

[2] Vance's attack led to a rare unity on the German left between anti-Germans and anti-imperialists. Compare the two articles: by Holger Marcks “Free Speech Elegy” in the Jungle World on March 13, 2025 and by Jörg Kronauer “Braune Internationale” in the Junge Welt on March 21, 2025.

[3] Seemingly taking up the demands of the New Left and distancing itself from the era of conservative Chancellor Konrad Adenauer, the first government declaration of the first social-liberal coalition of SPD and FDP was entitled “Mehr Demokratie wagen” (Daring more democracy), which became a catchphrase in Germany.

[4] CDU/CSU/SPD: Coalition agreement 2025 — For a strong, fair Germany, Berlin 2025, 92.

[5] Frank-Walter Steinmeier, “Festakt zu 175 Jahre Deutsche Nationalversammlung in der Paulskirche,” Bundespraesident.de, May 18, 2023.

[6] Terrorist organisations like the Baader-Meinhof-Gruppe, later known as the Rote-Armee-Fraktion (RAF), emerged out of the milieu of the 1960s student protests and the Außerparlamentarische Opposition movement (“extra-parliamentary opposition”, APO). Initially, the group committed arson attacks on department stores in Frankfurt in April 1968. The activities of this group culminated in the so called German Autumn in 1977, during which the kidnapping and murder of the businessman Hanns Martin Schleyer and the highjacking of Lufthansa Flight 181 took place.

[7] The German Basic Law contains a provision for the ban of political parties which threaten the “free democratic basic order”; see Basic Law for the Federal Republic of Germany, Article 21(2), translation by the German Federal Ministry of Justice. On the basis of this article, the neo-Nazi Socialist Reich Party (SRP) was declared banned by the German Federal Court in 1952, as was the German Communist Party (KPD) in 1956.

[8] “Schlussstrich” (“line of closure”) is a term that periodically resurfaces through calls for an end to the culture of remembrance of Germany’s National Socialist past as something that informs current-day politics. It also is used to argue against any special responsibility of Germans that are too young to have been actively involved in the actions of the National Socialist regime. In 1949, the term was specifically used in campaigns for an end of Denazification measures in Western Germany.

[9] The political parties of postwar Western Germany were under the suspicion of harboring individuals involved in the Nazi regimes to different degrees. The FDP was especially under scrutiny after the uncovering of a secret network of former NSDAP party members (“Naumann Circle”) within the party in 1953 (Naumann Affair).

[10] Immanuel Kant, What Is Enlightenment?, trans. Mary J. Gregor (originally published 1784).

[11] “The German theory of law had little interest in the genesis of laws and concerned itself with the interpretation of positive laws regardless of their origin. The English middle classes took an essentially political interest in the genesis of laws. The German theory is liberalist-constitutional; the English theory is democratic-constitutional.” Franz L. Neumann, "The Change in the Function of Law in Modern Society," in The Rule of Law Under Siege: Selected Essays of Franz L. Neumann and Otto Kirchheimer, ed. William E. Scheuerman (Berkeley: University of California Press, 1996), 119.

[12] Ibid, 147.

[13] “The law regarding organization of national labor of January 20, 1934, legalized the foregoing definition of the federal labor court, the consequence being that the contractual relationship between worker and employer is replaced by the obligation of faithfulness which is derived from this community.” Ibid, 135.

[14] “All three functions of the generality of laws-obscuring the domination of the bourgeoisie, rendering the economic system calculable, and guaranteeing a minimum of liberty and equality-are of decisive importance and not just the second of these functions, as the proponents of the totalitarian state claim. If one views — as, for example, Carl Schmitt does — the generality of laws as a means designed to satisfy the requirements of free competition, then the conclusion is obvious that with the termination of free competition and its replacement by organized state capitalism, the general law, the independence of judges, and the separation of powers will also disappear and that the true law then consists either in the Führer's command or the general principle (Generalklauseln).” Ibid, 118.

[15] Cf. Strafgesetzbuch für das Deutsche Reich, § 130, in Deutsches Reichsgesetzblatt, 1871, Nr. 24, 127–182.

[16] Trans. Henry W. Pickford, in Critical Models: Interventions and Catchwords (1998), 93.

[17] It is also no coincidence that, following Donald Trump's first election in Germany, Sinclair Lewis' book Das ist bei uns nicht möglich (That's Not Possible Here) about the possibility of establishing a fascist dictatorship in America was reissued by German publisher Aufbau Verlag in 2017.

[18] A Campact petition against AfD politician Bernd Höcke, for example, makes this demand: Indra Ghosh, Wehrhafte Demokratie: Höcke stoppen!. WeAct-Petition, Campact 15. February 15, 2024.

[19] Fatina Keilani, "Freedom of expression in danger: conviction for satire meme," Neue Zürcher Zeitung (February 17, 2025).

[20] 60 Minutes, "Policing the Internet in Germany, Where Hate Speech, Insults Are a Crime," YouTube, February 17, 2025.

[21] "The Meaning of Working Through the Past," trans. Henry W. Pickford, in Critical Models: Interventions and Catchwords (1998), 92.