On the anniversary of Germany’s unconditional surrender, the Bundesrat today held its first reading of a bill that would criminalise certain statements about Israel under a newly created offence. The initiative, introduced by the Hessian state government, proposes a criminal prohibition of the “denial of Israel’s right to exist”. Under the proposal, anyone who “publicly or in an assembly denies the right of the State of Israel to exist or calls for the elimination of the State of Israel in a manner capable of encouraging antisemitic acts of violence or arbitrary measures” would be liable to prosecution.

This is not the first attempt to establish such an offence – an effort apparently first set in motion by the pro-Zionist Tikvah Institute. Two years ago, a similar proposal, also put forward by Hesse, failed largely because of resistance from legal scholars and practitioners well beyond any suspicion of ideological bias. More recently, the French Loi Yadan met the same fate; it was constructed along strikingly similar lines, though at least framed, like the Tikvah Institute’s proposal, in formally abstract terms (“provocation à la destruction ou à la négation d’un État”).

The Hessian state government is evidently dissatisfied with what is already a far from restrained approach by German courts and prosecutors. In its view, pro-Palestinian activists, outspoken critics of Germany’s complicity in the escalation of violence in Palestine and Lebanon, the BDS (Boycott, Divestment, Sanctions) movement, and even anti-Zionist Jewish groups are still not being prevented firmly enough from assembling, nor punished harshly or consistently enough – whether for the use of symbols of unconstitutional organisations, approval of criminal offences, incitement of the people (Volksverhetzung), or whatever provision comes in handy. Hence the fix: abstract suitability to encourage readiness. Violence. Arbitrary measures. Right to exist. Elimination. Fine-grained doctrinal questions of legal certainty, the state of emergency/emergency powers, and geopolitics compressed into a single relative clause of the Criminal Code – whatever helps, the broader the punishment, the better. Following the Bundestag’s BDS resolution, the planned criminalisation constitutes another political enemy line drawn to outlaw a movement rooted in human rights advocacy. It belongs to a longer history of such declarations, stretching from the boycott protests organised by student groups, including Jewish ones, against the sentimental rehabilitation of Nazi star Veit Harlan (paving the way for the famous Lüth case of 1958!) to the “soldiers are murderers” controversy of the 1980s and 1990s: enemy lines which, until now, have invariably failed when confronted with the constitutional protection of freedom of expression.

The bill’s explanatory memorandum is itself a record of the constitutional, political, and moral dead end into which the German discourse on Israel has manoeuvred itself. The proposal is unconstitutional (see Kai Ambos). To reach any other conclusion would require a fairly advanced expertise in the legal methodology of authoritarian legalism – particularly when it comes to the principle of legal certainty. The memorandum cites the slogan “From the River to the Sea, Palestine will be free” as an example of denying Israel’s right to exist, despite the slogan’s well-known and highly contested history and ambiguity. What else? Would describing Israel as a settler-colonial state fall under the offence? Advocating a right of return for Palestinian refugees? Then there is the more or less openly unequal treatment based on ethnic or religious considerations (Article 3(3) of the Basic Law). Jewish offenders, Orthodox as well as secular anti-Zionists, are to remain exempt from punishment where they “articulate conceptions of the welfare of the Jewish people aimed at overcoming Jewish statehood”. In other words: they risk punishment, if at all, only once their concern extends to the welfare of the Palestinian people. The Hessian State Chancellery, for its part, certifies that intra-Jewish anti-Zionism does not represent a “plausible” position, while at the same time concluding that it nevertheless “fails to display the required specific connection presupposed by the criminal provision between negating the State of Israel’s right to exist and its suitability for promoting antisemitic acts of violence or arbitrariness” – although, and here comes the logic of criminal offences punishing mere risks, “such pronouncements may ultimately be invoked by third parties to underpin an attitude directed toward the destruction of the State of Israel” (all on p. 10). The clause appears designed chiefly to ensure that the criminal liability of those third parties remains guaranteed.

The very term “denial” further suggests an analogy to Holocaust denial under Section 130 (3) of the Criminal Code (StGB). Legally speaking, however, the question whether Israel possesses “a right to exist” is not a question of fact but of opinion. More than that: it is not even the denial of an existing legal entitlement, since international law recognises no autonomous “right to exist” detached from sovereignty and territorial integrity.

++++++++++Advertisement++++++++++++

Stelle als Akademische Rätin/Akademischer Rat im Beamtenverhältnis auf Zeit (m/w/d)

Interesse an einer wissenschaftlichen Karriere (Habilitation) im (Außen-)Verfassungs-, Unions- und/oder Völkerrecht?

Für das Europa-Institut, insb. am Lehrstuhl für Öffentliches Recht, Europarecht und Völkerrecht (Prof. Dr. Till Patrik Holterhus, MLE., LL.M. (Yale), Direktor des Europa-Instituts) sucht die Universität des Saarlandes zum nächstmöglichen Zeitpunkt bzw. nach Absprache eine/n verantwortungsvolle/n, motivierte/n und engagierte/n Mitarbeiter*in (Besoldungsgruppe A13, drei Jahre mit der Möglichkeit zur Verlängerung um weitere drei Jahre, Beschäftigungsumfang 100% der tariflichen Arbeitszeit).

Bewerbungsfrist: 31.05.2026

Alles weitere hier.

++++++++++++++++++++++++++++

The drafters do not deny that the proposed offence is directed at discriminating against a specific viewpoint. Nor do they bother to construct supposedly neutral legal interests to be – in accordance with standing precedent – “protected absolutely, irrespective of any particular opinion”. Instead, they seek to take advantage of the “exception” the Federal Constitutional Court (Bundesverfassungsgericht) carved out in its 2009 Wunsiedel decision for criminal restrictions on speech associated with National Socialism. This, however, is precisely what the Court had itself sought to foreclose. In Wunsiedel itself (para. 66), it insisted that the case concerned a “unique constellation touching upon the history-shaped identity of the Federal Republic of Germany” and was therefore “not transferable to other conflicts”. Yet, as the jurisprudence of the Court’s other Senate on European integration has demonstrated often enough, constitutional standards grounded in identitarian rather than legal reasoning have a tendency to emancipate themselves from their original limits. This becomes particularly clear in the memorandum’s central legal argument: “The statement that ‘Israel’s security is part of Germany’s reason of state’ rests not merely on a political commitment, but on constitutional substance.” Here, reason of state and constitutional identity function as virtually interchangeable concepts – one directed outward, the other inward – and whoever succeeds in invoking either wins.

What this inglorious race for constitutional-identitarian rewards looks like is documented in the bill’s memorandum. Denying Israel’s right to exist is to be equated with glorifying National Socialism. The argument only works under the Wunsiedel exception if the two are treated as historically and politically equivalent. Yet, historically speaking, mind you, things look rather different, even for Zionists: Zionism, as is well known, grounds the claim to Jewish statehood in Jewish identity itself; it does not conceive of that statehood as compensation for the Shoah. Yet, the memorandum postulates an “indissoluble historical and political nexus” between the State of Israel and the extermination of Europe’s Jews by Nazi Germany. The “negation of Israel’s legitimacy”, it claims, signifies, “in the typical [phänotypische] standard case,” at the same time a rejection of the Federal Republic’s “responsibility […] for the protection of Jewish persons”. In plain terms: the State of Israel is in fact a German institution, serving as the external projection of the successful postwar moral rehabilitation of the country of the murderers, while the Basic Law provides its internal constitutional counterpart. This lesson is addressed above all to those parts of German society shaped by migration, often from the Middle East. If they tell different stories about the history and dynamics of violence since the Nakba than those told by the Foreign Office, then constitutional identity must be punished into them through criminal law as unambiguously as possible, until they too can finally adopt, with suitably liberated conviction, the perspective of (West) German memory politics.

For day-to-day criminal law practice, the bill offers little, as even the Hessian Minister of Justice admits: “The number of cases in this specific area […] is not so high that it would result in any noticeable additional workload.” More important, presumably, the bill offers a new way to ban pro-Palestinian demonstrations that is more likely to stand in court. Above all, however – and the Minister of Justice says this explicitly – the bill is intended as a “landmark decision” by the legislature about Germany’s political stance on the issue.

Symbolic politics, then? The drafters invoke Germany’s responsibility to protect Jewish life in bold moral terms. Yet, the legislation they propose plainly denies that very responsibility. The political logic of viewpoint discrimination is inescapable, whatever the intentions. Discriminatory speech laws exclude directly those against whom they are directed, just as they indirectly exclude those in whose name they claim to speak. In Wunsiedel, the Federal Constitutional Court justified the exclusion of neo-Nazism from democratic public life at a moment when that exclusion still broadly corresponded to political and social consensus in Germany. And the relevant provision – Section 130 StGB – was designed to protect public peace, not a particular group. And today? At a time when German politics itself is drifting toward authoritarian and potentially fascist majorities, the proposed offence ties the protection of Jewish people – symbolically, but also very concretely – to the existence of a state that currently presents displacement, discrimination, genocide and aggression as conditions of its own existence. Put differently, the law would force Jewish communities in Germany to define their identity through that other state. The parliamentary debate may at least provide an opportunity to confront those implications of the proposal.

*

Editor’s Pick

by JASPER NEBEL

Quelle: Apple TV

Do you know the feeling? Your trusted AI gives an obviously wrong answer – and when you flag the error, it responds in that very AI-specific blend of friendly, submissive and naive. That style regularly drives me mad. Which means I would be quite out of place in the world Vince Gilligan has created in the series “Pluribus”. This world is struck by a virus that soon infects (almost) all of humanity. The virus fuses everyone’s thoughts into a kind of collective super-consciousness. Everyone knows everything, everyone can do everything. The “I” ceases to exist – only a “we” remains. Except, of course, for the protagonist Carol Sturka – and eleven other people worldwide. The parallels with an artificial general intelligence are obvious – as are those with today’s AI: the “we” operates so efficiently and “perfectly” that it can neither lie nor be unkind.

*

The Week on Verfassungsblog

summarised by EVA MARIA BREDLER

In this week’s editorial, Florian Meinel laid bare the political logic behind a Hessian draft law: it would criminalise the denial of Israel’s right to exist – and thereby wedge the so-called political Staatsräson into Germany’s constitutional identity. KAI AMBOS (GER) explains in detail why he considers this unconstitutional.

But even without the Hessian addition to § 130 of the German Criminal Code, courts and authorities have been restricting freedom of assembly when it comes to the Gaza war. Most recently, a pro-Palestinian group caused a stir when it wanted to hold a vigil for the victims of the Gaza war on the grounds of what is now the Buchenwald memorial site on the anniversary of Buchenwald’s liberation. The city of Weimar relocated the assembly to the city centre several kilometres away; the Weimar Administrative Court has now sided with the city. ENNIO FRIEDEMANN and PAUL STROTHMANN (GER) doubt whether the court’s standard provides a constitutionally sound and legally certain basis for handling assemblies at memorial sites.

Ireland, too, was contending with assemblies last month – but on a very different scale. April 2026 has been the most politically charged month in Ireland in recent memory, with fuel price blockades virtually shutting down several parts of the country. The blockades were framed as a grassroots revolt against carbon taxes. SURYAPRATIM ROY (ENG) shows how, beneath the rhetoric, lay an alliance of fossil and racial capital – where climate obstruction, anti-migrant politics and elite interests converged.

In Germany, the fight against the climate crisis took place in court rather than on the streets: the Federal Court of Justice rejected actions against BMW and Mercedes, with the claimants sought to ban the global marketing of passenger cars with internal combustion engines after October 2030. While the decision rested on very specific German legal grounds, ELBERT DE JONG and MARVIN REIFF (ENG) draw out comparative lessons worth taking seriously.

The legislator, too, seems to be putting the brake on decarbonisation: the federal government wants to restore “freedom in the heating cellar”, and key points for repealing the German Heating Act are now on the table. MICHAEL FEHLING and BENJAMIN MEVES (GER) show why the plans are legally tricky – and what the federal states can do.

++++++++++Advertisement++++++++++++

Am 9. Mai ist in Hellerau die ZDF/ARTE-Aufzeichnung von „Ein Volksbürger“ zu sehen – im Anschluss folgt ein Podiumsgespräch, moderiert von Tobi Müller, mit Maximilian Steinbeis, Nicola Hümpel, Lars Koch und Mike Dele Dittrich Frydetzki.

Die für das Theatertreffen und den Friedrich-Luft-Preis 2025 nominierte politische Farce von Nico and the Navigators basiert auf Recherchen unseres Thüringen-Projekts. Sie zeigt den rasanten Aufstieg eines populistischen Ministerpräsidenten in einem deutschen Freistaat und die daraus resultierende Bedrohung für die Demokratie. Gerade angesichts der bevorstehenden Landtagswahlen wirft „Ein Volksbürger“ Schlaglichter auf mögliche Szenarien.

Weitere Informationen und Tickets finden Sie hier.

++++++++++++++++++++++++++++

While Germany says farewell to its Heating Act, Hungary’s future Prime Minister Péter Magyar wants to wave Chief Justice András Zs. Varga good-bye, who has made a name for himself as an illiberal jurist under Orbán. ERIKA FARKAS(ENG) explains why political pressure is not the way to remove Varga but implementing the ECtHR’s Baka judgment is.

MICHAEL MEYER-RESENDE (ENG), too, turns to Magyar’s new power and sketches whyMagyar, with regard to the pressing need to reform Hungary’s election law, could become Hungary’s Cincinnatus – the hero of Roman legend who saved his country from peril and, once done, returned to his fields.

But who will save the European Union from peril? More than 70 years ago, the 1952 European Defence Communityfailed to be ratified by France and Italy. ROBERT SCHÜTZE (ENG) considers the attempts by a group of legal scholars to resurrect the European Defence Community to rest on a “legal fantasy” – and explain why this idea would clash with both international law and today’s EU Treaties.

While some dream of resurrecting a long-gone defence project, the EU stays realistic enough to save itself from the peril of Trump’s tariffs. The European Parliament has now confirmed the political EU–US Turnberry trade deal; the EU institutions will have to prepare the legal details of its implementation. PHILIPP REINHOLD (ENG) contextualises and explains the deal.

Largely overlooked in the EU so far: in the Musk v. Altman trial, Elon Musk and Sam Altman are disputing the future of OpenAI. Although the case plays out between US companies in a US court, it raises two fundamental issues with significant implications for the European debate, says TEODORA GROZA (ENG).

Another AI spillover from the US: Meta classifies “Antifa content” as risk content and thereby aligns itself with the Trump administration’s campaign against “the” Antifa. SASCHA WOLF (GER) sees in this a structural legal problem that EU platform regulation can solve more effectively than the German courts.

A question that kept Karlsruhe busy concerned content of a different kind: the Federal Constitutional Court has declared the so-called secondary publication obligation (Zweitveröffentlichungspflicht) – which required publicly employed academics to republish their work in open-access form after an embargo period –in Baden-Württemberg’s higher education law incompatible with the Basic Law. For ELLEN EULER (GER), the decision points to a deeper problem: the tension between scholarly communication and copyright.

++++++++++Advertisement++++++++++++

Mapping Article 13: Academic and Scientific Freedom under the EU Charter
Vasiliki Kosta & Marie Müller-Elmau (eds.)

Academic freedom is under pressure. Though protected by Article 13 of the EU Charter, academic freedom in the context of EU law received practically no or very little attention. As legal and political developments accelerate, the meaning of this right is taking shape in real time. This edited volume puts Article 13 of the EU Charter in the spotlight and reflects its potential in light of past and present threats to academic freedom.

Discover the potential of Article 13 EU Charter in protecting academic freedom here!

++++++++++++++++++++++++++++

On Thursday, the Bundestag debated the reform of the Federal Disability Equality Act. LARA SCHMIDT (GER) takes stock: of the federal government’s promises to make the private sector more accessible, little remains in the draft.

Little is also likely to remain of the AfD’s political promises: the AfD in Saxony-Anhalt wants to enshrine parental rights in the constitution – where they have long been anchored. RAHEL SCHWARZ (GER) shows how the state party uses them as a lever to remake education and society.

Elsewhere, right-wing politicians are reaching for far more drastic means: from Ecuador to Costa Rica, they make the pilgrimage to El Salvador’s mega-prison to copy this alleged silver bullet against gang violence. LUKAS GRAUTE(ENG) explains why the building cannot be imported without bringing along its authoritarian scaffolding.

Better role models can be found every month in our Outstanding Women Project: for May, LAURITZ WILDE (ENG) portrays Shaista Suhrawardy Ikramullah, who shaped the formation of Pakistan, the Universal Declaration of Human Rights, and the Genocide Convention – despite every obstacle she faced as a Pakistani woman. She was determined to take a new path, “in which one could taste the joys of achievement as well as the bitterness of failure, to know both hope and fear, disillusionment and attainment”, for it was undoubtedly a “richer, fuller and more rewarding way of life”. She was right – and rights she created.

*

That’s it for this week. Take care and all the best!

Yours,

the Verfassungsblog Team

If you would like to receive the weekly editorial as an e-mail, you can subscribe here.

The post The Dialectic of Viewpoint Discrimination appeared first on Verfassungsblog.