43 Spring 2026 § 130 StGB was first introduced in 1871 as part of the Imperial Penal Code (Reichsstrafgesetzbuch). It emerged in the context of the “class struggle” and was intended to suppress incitement to violence between social “classes” and prevent violent conflict between the working class and bourgeoisie.32 Whether the term “classes” within the meaning of the provision also included religious groups such as Jews was initially unclear. In 1899, the Imperial Court (Reichsgericht) finally held that Jews were to be regarded as a “class” within the meaning of the provision. What had been a marginal issue in the nineteenth century became, after World War II and the founding of the Federal Republic of Germany, the principal field of application of the provision.33 In its current form, § 130 StGB comprises eight (sometimes convoluted) paragraphs. Paragraphs 1 and 2 cover inflammatory expressions and their dissemination regardless of specific political orientation. Paragraphs 3 and 4 specifically criminalize statements concerning National Socialist injustices.34 Paragraph 3 (since 1994)35 penalizes the approval, denial, and trivialization of the National Socialist genocide, while paragraph 4 (since 2005) penalizes, more broadly, the approval, glorification, or justification of the National Socialist regime of violence and arbitrariness. The elements of the offense under paragraph 3 are fulfilled when such statements are made publicly and can disturb public peace. For paragraph 4 to apply, it is additionally required that the conduct occurs in a manner that violates the dignity of the victims.36 The legally protected interest (Rechtsgut) of § 130 StGB is primarily public peace, which is understood as a general condition of legal security and peaceful coexistence among citizens.37 According to the legislative materials, paragraph 3 in particular is intended to “prevent the poisoning of the political climate through the trivialization of the National Socialist regime of violence and arbitrariness.”38 The offenses in paragraphs 3 and 4 further serve to protect the dignity and the post-mortem right of respect for the survivors and victims of the Holocaust.39 One might assume that the term “denial” in § 130 (3) StGB also serves to protect “historical truth.’’40 However, scholarship in German criminal law rejects this interpretation, arguing that there exists no abstract right to historical truth.41 Nevertheless, this cannot be construed as conferring a right to disseminate false conspiracy theories. As already noted, false factual assertions do not fall within the protective scope of freedom of expression under Article 5 (1) GG. Accordingly, conspiracy theories that assert false factual claims fall outside the scope of Article 5 (1) GG and can constitute a violation of § 130 (3) StGB. The situation becomes more complex when conspiracy theories blend factual assertions with value judgments. In cases of doubt, such expressions are still subsumed under freedom of expression; only when the elements of § 130 StGB are satisfied can an interference with that freedom – for instance, through restrictions on assemblies under public order law – be justified. The following section illustrates, with reference to selected examples from German case law, where the boundary lies between the protected sphere of freedom of expression and criminal liability for incitement to hatred in the dissemination of conspiracy theories.42 32. Benedikt Rohrßen, “Von der ‘Anreizung zum Klassenkampf’ zur ‘Volksverhetzung’ § 130 StGB,’’ 4 (Berlin 2009). 33. Decision of Nov. 10, 1899 (Rep. 2968/99), in: ENTSCHEIDUNGEN DES REICHSGERICHTS IN STRAFSACHEN, 200. Band, Leipzig, 1900, p. 352 f. 34. Elisa Hoven/Annika Obert, “Das Tragen von ‘Ungeimpft’- Sternen - Geschmacklosigkeit oder Straftat?’’ NStZ 2022, 331 (331). 35. FEDERAL LAW GAZETTE I 1994, 3187. 36. TK-StGB/Sternberg-Lieben/Schittenhelm StGB § 130 para. 22d; FEDERAL LAW GAZETTE I 2005, 970. 37. MüKoStGB/Anstötz StGB § 130 para. 22. 38. Bundestag document BT-Drs. 12/8588, 8. Oct. 20, 1994. 39. Lackner/Kühl/Heger/Heger StGB § 130 para. 1. 40. Supra note 34. 41. Stegbauer NStZ 2000, 281 (282); Bertram NJW 2005, 1476 (1477). 42. The cases are part of the database “Seeing Antisemitism through law,” an open access database of court decisions relating to antisemitism in France, Germany, Poland and the United Kingdom, available at https://satl.uwazi.io/en
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