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Fine for Displaying Israeli Flag in a Spontaneous Counterdemonstration at an Anti-Israel Demonstration:

The Jerusalem Post reports, apparently relying on this German-language source:

A local district court in the West German city of Bochum fined a student 300 Euros on Wednesday for displaying an Israel flag at a demonstration organized by Muslim organizations against the IDF Operation Cast Lead in January. According to Der Westen, a regional paper in Bochum, the public prosecutor termed the Israeli flag as "provoking" within a special situation....

According to Der Westen, the local district court judge deemed the protest of the five activists expressing solidarity with Israel as a "dangerous situation."

A spokesman for the district court, Volker Talarowski, told the Post that there was a "violation of the right to assembly" and the court's decision was issued "independent of a political motivation." Talarowski added that the pro-Israel demonstrators failed to register their protest 48 hours before the event.

Yet the student, who is appealing the fine, said a special regulation permits "spontaneous" demonstrations without a pre-registration. In response to a hardcore anti-Israeli demonstration in Bochum attended by 1,600 protesters on January 17, the student, along with four pro-Israeli activists, displayed a banner stating "Against anti-Semitism and fascism: Solidarity with Israel" as well as the Israel flag....

I'd much appreciate any translation of the source, or correction or amplification of the Jerusalem Post article, from people who know German. Naturally, if anyone can find the court decision, and the relevant regulations, I'd also much appreciate seeing those. Thanks to Avi Bell for the pointer.

Related Posts (on one page):

  1. Fine for Displaying Israeli Flag in a Spontaneous Counterdemonstration at an Anti-Israel Demonstration:
  2. Criticizing Islam and Mohammed Is a Crime in Finland:
  3. Now There's a Law That's Sure To Reduce Ethnic and Religious Tensions:
rick.felt:
Prof. V:

Since you're a god of the 1st Amendment, could you enlighten me here?

I understand that in the U.S., not all laws requiring demonstration permits are not facially invalid, because they're reasonable time/place/manner restrictions. But if the Butter-Side-Up Brigade gets a permit for a demonstration, it is lawful to require the Butter-Side-Down Society to counter-protest nearby? In other words, does one permit open the door for other protests, provided they're in the same place?
9.11.2009 9:18am
rick.felt:
Er.... "not all laws requiring demonstration permits are facially invalid."
9.11.2009 9:18am
martinned (mail) (www):
Let me see...


Pro-israelische Demonstrantin verurteilt
Bochum, 10.09.2009, Bernd Kiesewetter, 57 Kommentare, Trackback-URL
Bochum. Wegen einer nicht angemeldeten Demo wurde jetzt eine Frau vom Amtsgericht zu einer Geldstrafe von 300 Euro verurteilt. Sie hatte als Gegendemonstrantin bei einer Versammlung von vier Moschee-Vereinen unter anderem eine Israel-Fahne in die Luft gestreckt und ein Transparent ausgerollt.


Pro-Israel demostrator convicted

For an unregistered demonstration, a woman has been sentencted to a € 300 fine by the "Amtsgericht". Amongst other things, she stuck an Israel flag in the air and displayed a banner at a meeting of four "Mosque-associations".
9.11.2009 9:19am
martinned (mail) (www):

Laut Urteil hatte sie gegen das Versammlungsgesetz verstoßen, weil sie eine Demo nicht rechtzeitig angemeldet und somit „keine ungefährliche Situation geschaffen” hatte.

According to the ruling, she violated the "Association Act" (i.e. association in the first amendment sense of meeting, etc.), because she did not register the demonstration at the correct time, and had "failed to create a safe situation".
9.11.2009 9:22am
davod (mail):
There was another incident where somebody hung an Israeli flag outside an apartment window as protestors were walking below. The police removed the flag for the the same reason - the flag may have caused a dangerous situation.
9.11.2009 9:23am
martinned (mail) (www):

Die Sowi-Studentin hatte am 17. Januar in der Bochumer Innenstadt eine Mini-Demo mit rund sechs Gefährten gegen eine große Demo von vier Moschee-Vereinen abgehalten; bei dieser hatten 1600 Menschen die israelischen Luftangriffe gegen Palästinenser im Gazastreifen kritisiert. Das wollte sich die 30-Jährige nicht unwidersprochen bieten lassen, weil sie darin „eine Täter-Opfer-Umkehr” sah. „Das kann man nur als Antisemitismus bezeichnen.” Vor allem, weil Teilnehmer der anderen Demo „sehr aggressiv, sehr böse” gewirkt und „Stoppt den Holocaust” gerufen hätten.

The student of social sciences and about six of her friends organised a mini-demonstration on January 17 in the inner city in Bochum against a large demonstration by four "Mosque associations"; the latter involved about 1600 people criticising the Israeli air attacks against the Palestinians in the Gaza strp. The 30-year old did not want to leave this without reply, because she considered this a "Guilty party-victim-reversal". Especially because the participants in the other demonstration had apeard "very aggresive, very angry" and had yelled "stop the Holocaust".
9.11.2009 9:26am
neurodoc:
Yet the student, who is appealing the fine, said a special regulation permits "spontaneous" demonstrations without a pre-registration.
So the legal outcome might turn on whether the student acted "spontaneously" or with "pre-meditation"?
9.11.2009 9:31am
martinned (mail) (www):
Paraphrasing some of the rest of the article: Apart from the flag and the banner, she handed out flyers saying "Against antisemitism and Fascism" and "Solidarity with Israel".

The police immediately intervened, because the political situation was extremely charged, in part due to the incident Davod already referred to above.


Der Polizei-Einsatzleiter (51) begründete dies im Zeugenstand so: „Ich habe damals gesagt: Ich will heute keinen Polizeibeamten sehen, der seine Hand an eine Israel-Fahne legt. Das war politisch brisant.” Die Aktion mit der Fahne sei „stimmig und sehr zielgerichtet” gewesen. „Sie hat die Macht des Faktischen geschaffen.”

The leader of the police on site (51) supported the action as follows: "I said at the time: I do not want to see any cops putting their hand on an Israeli flag. That was politically sensitive." The action regarding the Flag was sensitive (?) and narrow. [I'm passing on that last sentence. I have no German dictionary around.]
9.11.2009 9:31am
martinned (mail) (www):
@neurodoc: Unlikely. I'm no expert on German law, but my sense is that it will turn on the extent to which she endangered herself and others, i.e. the extent to which she was about to provoke a riot.
9.11.2009 9:33am
/:
And if somebody is offended by something facile or riots at some specific non-provocatory symbol, at what point does being offended become the crime?
9.11.2009 9:35am
Rr:
@martined

I think you accidentally omitted something in the translation:

Das wollte sich die 30-Jährige nicht unwidersprochen bieten lassen, weil sie darin „eine Täter-Opfer-Umkehr” sah. „Das kann man nur als Antisemitismus bezeichnen.”

Last part reading (loose translation): "The only way to characterize that is as antisemitism."
9.11.2009 9:36am
Rr:
Die Aktion mit der Fahne sei „stimmig und sehr zielgerichtet” gewesen. „Sie hat die Macht des Faktischen geschaffen.”


FWIW - Best translation I can come up with right now is

"The action with the flag was [something] and with great purpose - it has created [shaped?] 'the power of facts'"
9.11.2009 9:40am
qsi (www):
martinned: stimmig is closer to "appropriate" than sensitive. As for that last sentence, it had me stumped too, but I think it comes close meaning the creation of a fait accompli.

One minor niggle with "keine ungefährliche Situation geschaffen" [haben]. Literally it means that she is convicted of "creating a not un-dangerous situation."

Neurodoc: yes, based on this article it does seem that if she can prove that her action was spontaneous, she's off the hook. Having banners, flyers and flags at the ready is a problem in that regard, but she claims to have been on the way to another demonstration in the town of Duisburg.
9.11.2009 9:41am
Anderson (mail):
According to Der Westen, the local district court judge deemed the protest of the five activists expressing solidarity with Israel as a "dangerous situation."

My goodness, I hadn't thought any judges from the Weimar era were still alive, much less on the bench.
9.11.2009 9:44am
qsi (www):
As an addendum to the issue of spontaneity: I'm not an expert in German law either, but the sentence in the article "Die Staatsanwältin hält dies für „eine pure Schutzbehauptung”" leads me to suspect that it does matter. It means "The DA considers this [her explanation of going to another demonstration] to be an excuse."
9.11.2009 9:46am
Rr:
Nevermind my last translation - did some checking out of curiosity and "Macht des Faktischen" is something like "the force of reality" ... but then meaning something specific in context of social change. Not even going to attempt to do something for translating that :)
9.11.2009 9:54am
Ariel:
I'm offended by the hardcore anti-Israel demonstrators, but not that likely to go on a murderous rampage against them. This sort of law, then, provides a supreme heckler's veto. As long as you seem like you're going to hurt people as a consequence of their speech, they can be censored.
9.11.2009 9:56am
Brett Marston:
The earlier incident in Duisburg is the immediate context for the police spokesperson's quote above. In Duisburg on January 10, 2009, a left-wing student put up an Israeli flag along the route of a protest by Milli Görüs, a group under state surveillance for its extreme views. This student (unnamed) apparently intended to provoke the police into taking down the flag. Thus, given the earlier incident in Duisburg, the situation in Bochum was "politically explosive [brisant]." In order to prevent more images of German police taking away an Israeli flag (this time in Bochum), the counter-demonstraters were separated from the main demonstration.

The earlier incident has its own wikipedia page, here:

http://de.wikipedia.org/wiki/Duisburger_Flaggenstreit

The police were heavily criticised for the incident in Duisburg, both in the state government and in the press. But it looks like the left-wing "anti-German" guy correctly predicted what German police will do when faced with a situation in which they believe that they must act in order to prevent violence to persons or property.
9.11.2009 10:29am
Positroll:
1) According to the "association law", if you PLAN a public demonstration, you have to
a)organize enough security so that your own guys don't get out of hand. This is a non issue here. It is possible that the judge thought that they need enough security to protect them against opposing demonstrators, but such a psoition would not be in line with German constitutional law (as far as I remember my ConLaw class; see also b) below)

b)inform the police beforehand, so that they can get enough forces on the ground to protect your guys from any opposing forces. In other words, the rule is: inform the police so that they can keep the peace and stop both sides from killing each other if necessary.

c) inform the police beforehand so that they can forbid the demonstration [at this specific place] if it is absolutely necessary to avoid bloodshed. Doing it soon enough (as required by the law) allows you to go to a court for a preliminary injunction setting aside the police order, if free speech concerns require that you stage your protest even if there is a danger of bloodshed.

2) Spontaneus demonstrations are of course excempt from this rule due to free speech considerations.

3) The 1(b) part is the issue here. The prosecutor and the judge didn't believe this was a spontaneous demonstration but considered it a planned one. So she basically got fined for making live for the police more difficult. SHE WAS NOT FINED FOR WAVING THE FLAG. The flag only served as proof of the non-spontaneus nature of the demonstration.
9.11.2009 10:39am
LTEC (mail) (www):
In Toronto, Canada, there was a huge demonstration recently in support of the Tamil Tigers. From across the street I shouted "You are supporting terrorists", but my voice was almost completely drowned out by the very noisy demonstration. A policeman came up to me, and warned me that if I continued, I was in danger of being attacked by the demonstrators, and in danger of being arrested. I told him that I thought his job was to protect me from the mob rather than arrest me for my speech, but I failed to convince him.

In case you think that the whole issue is that they had a permit and I didn't: the day before, the pro-Tigers blocked a major highway with their protest, without any license, and nothing happened to them.

It is purely the case of the police protecting violent mobs.
9.11.2009 10:46am
martinned (mail) (www):
@Positroll: Thanks. That sounds about right given the article. It also sounds like the system we have here in the Netherlands.

Substantively, I think this is a good system. I don't have much patience for these "insulting Islam/Jews/Judaism/God" laws, but this is another matter. The law as positroll explained it sounds like a common sense way to deal with this problem. Heckler's veto my *ss. Yes you can say what you like, but you don't have to be a jerk about it and deliberately incite a riot.
9.11.2009 11:13am
Ariel:
New definition of being a jerk and inciting a riot: holding up a flag and a banner opposed to another protest.

It's great that the police want to prevent riots. I'm not in favor of riots either. The question is do you want to protect the potential rioter or the potential riot provoker? And if you want to protect the potential rioter, you're increasing the incentive to riot because you get to shut the other guy up, and creating a heckler's veto.
9.11.2009 11:19am
martinned (mail) (www):
@Ariel: Holding up an Israeli flag next to a pro-Palestinian demonstration fits my definition of a jerk. If you seriously want to have a counter-demonstration, have a talk with the police so that you can discuss how this can be arranged with a minimum of disruption.
9.11.2009 11:34am
Ariel:
This demonstration was billed not as pro-Palestinian but as anti-Israeli. That's not an unimportant distinction, when doling out the label of being a jerk.

Regardless of who was the jerk, I find it striking that you seem to think the police should protect the potential rioter instead of the potential riot victim.
9.11.2009 11:42am
David McCourt (mail):
"Heckler's veto my *ss. Yes you can say what you like, but you don't have to be a jerk about it and deliberately incite a riot."

Yeah, who wants to be a "jerk" and "incite a riot" by doing something so outrageous -- like displaying a nation's flag on the public street of a (once) free country. That definitely should be illegal.

I guess Dutch pol Pim Fortuyn was a jerk, for saying that Islam was a danger to homosexuals like himself, and so was rightly killed. And film-maker Theo Van Gogh was also a jerk, for daring to make a movie on Islam, which is why he had his head cut off on an Amsterdam street by an Islamic fanatic. And there's Ayaan Hirsi Ali, still alive -- so far. She's also a jerk, provoking and inciting people by talking about what Islam does to women, so she was rightly run out of the country by the Islamicists. Can't have jerks like this around, causing violence.

"Heckler's veto my *ss" -- your *ss indeed. If you're Dutch, your *ss already belongs to the Mohammedans, and you don't even know it.

P.S. I hear Yale University Press has an opening you might be interested in.
9.11.2009 11:50am
martinned (mail) (www):

"Heckler's veto my *ss" -- your *ss indeed. If you're Dutch, your *ss already belongs to the Mohammedans, and you don't even know it.

It's a good thing we have Fox News to tell us Europe is being overrun with muslims. You wouldn't know it just looking around here, but I'm sure they know better. (Just like they know Obama is a marxist even though he doesn't seem to think so, and like they know the various versions of the health care bill are full of provisions about euthansisng your grandma, even though the actual documents beg to differ, etc.)

There's a reason why I described this approach to competing demonstrations as "common sense". It is refreshingly undogmatic, especially looking at it from the typically legalistic US first amendment perspective. Citizens have rights, but they also have the (moral) obligation to exercise these rights responsibly, in a reasonable manner. Competing demonstrations are a problem, but one that can be dealt with among reasonable adults. At least, if it is known before hand that there will be two demonstrations. If not, the people who actually notified the authorities have the better claim.

As for this one:

Regardless of who was the jerk, I find it striking that you seem to think the police should protect the potential rioter instead of the potential riot victim.

This is a total misrepresentation of what I said. The police should protect the victim against the attacker, to be sure. But better still, the police should keep the disputing demonstrations a safe distance away from each other, so that no one gets hurt in the first place. That works better if they have advance notice.
9.11.2009 12:12pm
Positroll:
Prof. Volokh:
Try David Currie’s treatise, The Constitution of the Federal Republic of Germany. Should cover most of the general topic, though it's a little bit old.
9.11.2009 12:30pm
David McCourt (mail):
". . . Europe is being overrun with muslims. You wouldn't know it just looking around here, but I'm sure they know better."

A member of your country's parliament was forced to flee the country because of threats from Muslims, and other prominent critics of Islam have been killed by Muslims, but you can't see the Muslims, so it's OK, and must just be propaganda from Fox News (?!).

I don't know where in the Netherlands you are looking, but in the four largest cities — Amsterdam, Rotterdam, the Hague and Utrecht — Mohammed (in its various spellings) is now the most common name for baby boys. http://www.telegraph.co.uk/ news/worldnews/europe/netherlands/6022588/

According to Statistics Netherlands, "more than half of young people living in Amsterdam and Rotterdam have a non-western background." http://www.cbs.nl/en-GB/menu/themas/ bevolking/publicaties/artikelen/archief/2006/


If you ever get down to your neighbors in Brussels, you'll find that the top seven baby boys' names there are Mohamed, Adam, Rayan, Ayoub, Mehdi, Amine and Hamza. http://www.telegraph.co.uk/news/ worldnews/europe/5994047/

But don't worry, assimilaition is not a problem; you'll be able to assimilate yourself into this community and its liberal ideas without difficulty. With your disdain for robust free speech, you're well on your way.
9.11.2009 12:52pm
Anderson (mail):
Holding up an Israeli flag next to a pro-Palestinian demonstration fits my definition of a jerk.

Good heavens, Martinned, are you serious?

Disagreement = jerk?

I am no fan of Israel's policies towards the Palestinians, but I hope we never get to the point where Palestine's supporters have to have their delicate wittle eyes protected from Israeli flags.
9.11.2009 12:55pm
Ariel:
I reread what you wrote and I don't think it's a misrepresentation at all. What you wrote focused on condemning the extent to which she was provoking or inciting a riot. That said, I'm happy that you've either come around or agree that it would be better to protect the victim.

The necessary corollary of that is that if I'm holding up a sign that's likely to provoke a riot, I'm not the one who gets in trouble with the law, whether it's a spontaneous action or not. Instead, if a riot ensues, the folks who are rioting are the ones who get in trouble.
9.11.2009 1:00pm
Ariel:
martinned,

I also have to disagree with your statements about Muslims in the Netherlands. I have Dutch Jewish first cousins and they seems to think so, just by looking around. So I can tell without watching Fox News (which I don't watch anyway).
9.11.2009 1:02pm
Brett Marston:
I said above that the guy in Duisburg was a left-wing "anti-German," as an official report on the situation put it. His description of the situation is a little different; he says that he was expressing solidarity with Israel and didn't expect the police to intervene:

Link to interview.

It looks like the story about the guy's motivations is primarily the creation of the official report, with (apparently) the relevant excerpt here:

Link to story with excerpts.


Der, so das Gutachten, gehöre zu den Antideutschen und habe auch schon Plakate von Rechtsradikalen beschädigt. Klar, dass so einem alles zuzutrauen ist, und so lässt Vahe in seinem Gutachten seiner Phantasie freien Lauf - der könne ja alles nur inszeniert haben: "Eine gewisse Indizwirkung kommt in diesem Zusammenhang der Tatsache zu, dass der Polizeieinsatz – mit hoher Wahrescheinlichkeit von der gegenüber liegenden Straßenseite - gefilmt und die Aufzeichnung anschließend zusammen mit einem Kommentar im Internet publiziert wurde. Hieraus könnte gefolgert werden, dass es den betroffenen Personen (Mieter bzw. Gästen der Wohnungen im Haus Clausberger Str.) maßgeblich darauf ankam, die Polizei zu einem – aus ihrer Sicht rechtswidrigen – Zugriff zu veranlassen und das (angebliche) Fehlverhalten anschließend publik zu machen. Zwingend ist der Schluss auf eine intendierte Inszenierung freilich nicht. Gegen die Wohnungsinhaber oder ihre Gäste bestehen nur Verdachtsmomente."


The report does not appear to be public, but the excerpt apparently quoted above doesn't ground the claims about the student's motivation in anything other than his apparent previous history of defacing extreme right-wing posters, and the fact that the episode was filmed from across the street and that the student wrote some internet commentary on the events. I shouldn't have been so quick to judge.
9.11.2009 1:15pm
martinned (mail) (www):

I have Dutch Jewish first cousins

Good for you. You should come over here some time. There are plenty of other things to do here, other than getting high. (Which, just to disturb another Fox News talking point, Dutch people do at much lower rates than Americans.)
9.11.2009 1:32pm
Ariel:
I've been over there more than once. The first time was probably when I was 4. The most recent time was a while ago, admittedly - maybe 2001. I'll probably go over there again some time, but, for personal reasons, it's not as easy for me to travel as it used to be. Once those issues are cleared up, I'll be there again some time. In the mean time, I've had a number of my Dutch cousins visit me here in the States (most recently this summer), and we communicate via e-mail, Facebook, etc. While my cousins don't share my politics, they have their eyes pretty open about the number of Muslims in the Netherlands.

I've definitely noticed that Dutch people are not getting high all of the time, despite the ready availability of pot. Nor are they visiting prostitutes, despite the fact that you can see them when you walk through the Red Light District.

Just because I'm an American, pro-Israel, and libertarian or conservative doesn't mean I'm ignorant about the rest of the world or that I buy into the Fox News views - and like I said, I don't even know what they are, since I don't watch Fox News. For what it's worth, I grew up almost completely abroad and only returned to the US for college. Not all of us Americans are ignorant about the rest of the world, to disturb a Euro talking point.
9.11.2009 2:00pm
martinned (mail) (www):
@Ariel: Good to know. Whenever I hear American conservatives going on about how Europe is being overrun by muslims, I always wonder a) whether they have any source for that other than Fox News and Rush Limbaugh, and b) whatever happened to that "give me your huddled masses" thing.

(I know the answer to the latter, in the sense that "they changed the law". It's still an interesting thing to ponder...)
9.11.2009 2:09pm
David McCourt (mail):
martinned, you ask what source "American conservatives" have, "other than Fox News and Rush Limbaugh" -- whom I did not mention and do not watch. Perhaps you missed the citations I gave you. In which case, let me be the first to introduce you to Statistics Netherlands, the body statutorily responsible under Netherlands law for amassing data for use by the Dutch government and the EU. According to that body, the Muslims you claim not to see constitute half the young people in your major cities.

As for the "huddled masses," they are expected to become full citizens of the country, adopting its language, customs and social and political values -- to assimilate -- and in the U.S. they still, for the most part, do. They are not supposed to become members of isolated, self-contained communities, hostile to and contemptuous of the host country's values, laws and people -- as many have become in Europe, from Bradford to the suburbs of Paris, and perhaps in, or near, your own town. This is a real problem, whether you wish to see it or not.
9.11.2009 2:57pm
martinned (mail) (www):
@David McCourt: I didn't say I didn't see any muslims, they're not invisible. What I don't see is muslims taking over. They're still a modest minority, and almost certainly that will never change. Unlike those papists, who seem to have taken over the United States to the point that there are now five on the Supreme Court compared to exactly zero WASPs.

As for:

they are expected to become full citizens of the country, adopting its language, customs and social and political values

Remind me, when exactly was that part of the deal? It certainly isn't written on the statue anywhere. Immigrants tended to assimilate voluntarily in the US, and the vast majority of immigrants in the EU at the moment do the same. That is not to say that there aren't any problems. There most certainly are. For one thing, immigration seems to inspire more and more people to vote for racist bigots. But that is simply part of a country/continent trying to figure out what it is and where it is going. And "what it is" is, amongst other things, a place with a significant percentage of muslim citizens.

If you want a sensible analysis, from a conservative perspective, well, that is what we have The Economist for. (Remember, by liberal he means libertarian.) His (Charlemagne's) conclusion:


I do not share the doomy predictions of the Eurabia crowd. Europeans are not sleep walking into the abandonment of western civilisation. They are trying to work out how to adapt to fast changing societies, and they have their eyes wide open. And societies have always evolved. Immigrants in previous centuries and decades have prompted remarkably similar fusses, and are now well integrated. Young Spanish women did not have much freedom in the villages of their native Andalucia, 50 years ago.

Yet the arrival of traditional, pious immigrants in Europe does clearly test the liberal values that I hold dear. In short, how should a liberal, tolerant society protect the rights of a less liberal minority in its midst? Anyone with a quick answer to that one, I would suggest, is a fraud or a demagogue.


P.S. To be clear, all of this is an entirely separate question from what the appropriate immigration laws are, and whether they are being applied correctly. I would certainly favour a more American-style immigration law. But that's a conversation for another day.
9.11.2009 3:20pm
Rr:
I'm not sure Charlemagne's reasoning helps the argument against the supposed Muslim overrun - in fact, the last part you quote talks about how to protect the immigrant minority, not the native majority ... this is the exact opposite of arguing for integration, many would say. It's hard to argue that society is currently unable to deal with the mixing of two very dissimilar cultures/religions, and it's not like we haven't seen any religiously motivated violence on the European mainland recently (Balkans anyone?). So I can't say I'm overly positive about the future ... yet.

But I can't say I agree with David's arguments either. The examples of "so were these people jerks" are quite interesting. van Gogh was a self-proclaimed jerk, and Ali was - in the eyes of a significant segment of the Dutch population - using/abusing her power as a politician for pushing her personal anti-muslim agenda (i.e. what one could call jerky behavior). Per European norms, favoring order over individual freedom, it's certainly arguable that the counter-protester's behavior was jerky. Per American norms it was not (although plenty of people wouldn't support saying the same for the Phelps clan protests, which I believe fall into the same category).

The current situation in Europe does still stink, though. *sigh*
9.11.2009 3:45pm
David McCourt (mail):
Martinned, the anonymous blogger "Charlemagne" doesn;t seem to have much to say. One who does is Flemming Rose, the editor of Danish newspaper Jyllands-Posten, who published the Mohammed cartoons. He sees the immigration into Europe of large numbers of Muslims who do not wish to become integrated into European societies as posing a threat to civil liberties -- because of the steps taken by European governments to accomodate and bend to Muslim "outrage" over European customs, speech and behavior.

Rose cites as an example the arrest of the Dutch cartoonist Gregorius Nekschot by the Dutch govenment, which intends to prosecute him for the "crime" of publishing satiric cartoons about Islam, which constitute "blasphemy" and which might "incite violence," not by Nekschot's friends or those who read him, but by Muslims who disagree with him.

After Theo Van Gogh was killed in the street by a Muslem "offended" by Van Gogh's movie, the Dutch Ministry of Justice pushed to update the blasphemy laws, saying that if the law were "improved," the movie couldn't have been released and Van Gogh would have still be alive.

This is the danger, and this is precisely why your approval of a prosecution for displaying the Israeli flag are so wrong-headed, and have things exactly backwards (just as Yale UP has it backwards). If everything that might "offend" a Muslim cleric itching to be offended is to be made illegal, for fear of Islamic violence, then Europe needn't be "overrun" in order to lose itself. It will quietly police the speech of its own people, and abolish its own customs, one at a time -- just as many local authorities in England have banned the flying of the English flag, with its "Crusader" Cross of St. George -- for fear of offending or inciting its Muslim minority. Those of its citizens who don't get with the accomodation program can be prosecuted for "incitement" of violence that they themselves would never think to commit.

Europe has already come a long way from the days when Margaret Thatcher directed that a fortune in government money be spent to protect Salman Rushdie from Islamic outrage (though Rushdie himself despised Thatcher); do you think Gordon Brown would do the same? We know the Dutch would not; they told Ali to leave the country if she wanted to be safe.
9.11.2009 5:05pm
ShelbyC:

Holding up an Israeli flag next to a pro-Palestinian demonstration fits my definition of a jerk.


Geez. You sure have a funny definition of "Jerk". Why doesn't having a pro-Palestinian demonstration in front of pro-Israel folks qualify?
9.11.2009 5:15pm
martinned (mail) (www):

Per European norms, favoring order over individual freedom, it's certainly arguable that the counter-protester's behavior was jerky.

Apart from the fact that this case isn't so much about "order" in general, as it is about a potential riot, I don't think this is the right way to describe the difference between Europe and the US. I think the better way to put it is that European countries tend to be less litigous, and as a result issues like this one, concerning free speech and demonstrations, don't get phrased in legal language. I'd imagine that is what is interesting about this newspaper article, from an American point of view: neither the protester, nor the police phrase their arguments in legal language.

In this case, it looks like the defendant will bring a "Beschwerde", i.e. a complaint (as opposed to an appeal, though I'm not sure what the exact distinction is) before the Landgericht. Like the court below, the inquiry will be focused on the facts. In part because there's no jury, the procedure is much simpler. (Not to mention more based on documents instead of oral evidence, though that doesn't seem to be likely here.) Only when you get to the higher courts still (the Oberlandesgericht, the Bundesgerichthof and the legendary Bundesverfassungsgericht, i.e. the Constitutional Court) do rulings turn into treatises on constitutional law.

But even the recent BVerfG ruling on the Lisbon Treaty (link to the English version), while long and scholarly, is much less dogmatic than the equivalent case would have been in the US.

The combination of less legal dogma and more judicial restraint explains this case much better than any alleged preference of "order" over freedom.
9.11.2009 5:19pm
martinned (mail) (www):

You sure have a funny definition of "Jerk". Why doesn't having a pro-Palestinian demonstration in front of pro-Israel folks qualify?

Waving a Palestinian flag at a pro-Israel demonstration is also the act of a "jerk". That's just looking for trouble.
9.11.2009 5:20pm
ShelbyC:

Waving a Palestinian flag at a pro-Israel demonstration is also the act of a "jerk". That's just looking for trouble.


Huh. I have a tough time understanding why expressing your own views, in a context where folks have already decided to express their views, is jerky. I would think the presence of an opposing demonstration makes the expression more, not less, appropriate. (not that it would be inappropriate to begin with)
9.11.2009 5:24pm
martinned (mail) (www):
@David McCourt: The journalists of the Economist write anonymously because that is the policy of the magazine. Long story.

You're getting many things confused:
- Going back decades, the Danes have had the most strict immigration policy in Europe. A conservative in Denmark is likely to say things that would make Le Pen blush. Hardly the place to go looking for an objective assessment of immigration in Europe.

- The Nekschot case is pathetic, and I couldn't disagree with it more. The suggestion that this is based on the authorities being afraid of some kind of muslim underground army, however, is insane. The officials in question, up to and including the minister, are small-minded bureaucrats. They don't have the imagination to imagine real trouble.

- The word blasphemy is similarly not helpful. To the extent such a law can be enforced under relevant ECtHR precedent, the crime is insult against a group of people, by analogy to insult to an individual, to a police officer on duty and to the Queen, all of which are also crimes. (The unenforceable part is about insulting a religion, which is still very much not the same thing as blasphemy.)

- These laws against insulting religion are not intended to help muslims, they are intended to help orthodox christians. The Christian-Democratic party - who have been in government almost continuously since the enactment of general suffrage and the abolition of the district system in 1917 - are lead by one of those bible thumpers: our Prime Minster J.P. Balkenende. (He looks the part, too.) To make matters worse, they are in coalition not only with the socialists, but also with a smaller even more orthodox fundamentalist party. What these guys are interested in doing is making laws to protect Jesus. It just so happens those laws would protect muslims, too. Thank God for the ECHR.

- As for Ayaan Hirsi Ali leaving, that's not a case of the government being cowards, that's a case of the government being cheap, something that my compatriots, like Scots, are internationally renowned for.
9.11.2009 5:30pm
martinned (mail) (www):

Huh. I have a tough time understanding why expressing your own views, in a context where folks have already decided to express their views, is jerky. I would think the presence of an opposing demonstration makes the expression more, not less, appropriate. (not that it would be inappropriate to begin with)

Because it an act of someone looking for trouble, and then expecting the police to come help them. It's like walking into a bar full of English football hooligans and shouting that Rooney is a w*nker. Even if that happens to be your opinion, surely it isn't too much to ask to find a slightly more prudent way to express it.

That is the logic of the German system, too:
- If you have a permit for your demonstration, you can say what you like.
- If two opposing demonstrations both have a permit, those permits are based on an arrangement as to how the organisers of both demonstrations and the police are going to keep the groups separated. That happens all the time in Germany, particularly with Neo-Nazi's and anti-fascists.
- If you don't have a permit, for example because you didn't plan on doing any demonstrating, you can still say what you want to.
- But then the law imposes the duty on you to make sure that no "unsafe situation" emerges. (Not scare quotes, just quoting the law.) If you don't give the police the opportunity to organise things so that everybody can demonstrate peacefully and safely, you're expected to show a little restraint. How unreasonable is that?
9.11.2009 5:36pm
ShelbyC:

Because it an act of someone looking for trouble, and then expecting the police to come help them. It's like walking into a bar full of English football hooligans and shouting that Rooney is a w*nker. Even if that happens to be your opinion, surely it isn't too much to ask to find a slightly more prudent way to express it.


I'm assuming Rooney is an English soccer player, and w*nker is an English insult :-).

I'd say the situation is a little different, though. A demonstration is as effort to affect the political process by expressing support for a viewpoint. A counter-demonstration is an effort to undermine the other effort by someone opposed to that viewpoint; it's not just an effort to insult the other viewpoint, or cause trouble. IOW, I don't think saying that Rooney is a w*nker is "jerky" if some sort of outcome hinges on whether or not Rooney is a w*nker.

AFAIK, in the US one doesn't have a duty to prevent a "dangerous situation" caused by folks with an opposing viewpoint. That would create a "heckler's veto"
9.11.2009 5:59pm
martinned (mail) (www):

AFAIK, in the US one doesn't have a duty to prevent a "dangerous situation" caused by folks with an opposing viewpoint. That would create a "heckler's veto"

Yes, that's the dogma I was talking about earlier.
9.11.2009 6:41pm
David M. Nieporent (www):
@David McCourt: I didn't say I didn't see any muslims, they're not invisible. What I don't see is muslims taking over. They're still a modest minority, and almost certainly that will never change. Unlike those papists, who seem to have taken over the United States to the point that there are now five on the Supreme Court compared to exactly zero WASPs.
What's John Paul Stevens, chopped liver?
9.11.2009 7:26pm
David M. Nieporent (www):
- But then the law imposes the duty on you to make sure that no "unsafe situation" emerges. (Not scare quotes, just quoting the law.) If you don't give the police the opportunity to organise things so that everybody can demonstrate peacefully and safely, you're expected to show a little restraint. How unreasonable is that?
It's very unreasonable, because it confuses which side is (potentially) not showing restraint here. It's the rioters failing to show restraint, not the counter-demonstrators who are merely waving flags.

You talk about unsafe situations "emerging," as if it just happens, as opposed to people actually doing it.

The law should impose a duty on people not to riot, not a duty on someone to make sure other people don't riot.
9.11.2009 7:34pm
Brett Marston:
The group that the student belonged to has a blog, apparently, here:

http://befreitegesellschaft.wordpress.com/

The page has a description of the events at the bottom of the page, along with a PDF of the handout they were using on the day of the demonstration (all in German).

In an interview, the defendant also claims that the police initially intervened to prevent them from passing out literature or holding up a banner and a flag, but that after some negotiations, the police allowed them to continue, albeit at a slight distance from the original demonstration, and even thanked them for their cooperation afterwards.

The interview with the defendant is here:

Blog interview (in German)

At any rate, according to the defendant, the police did a pretty good job of allowing everyone to speak at the event. It's not clear from the reports what happened to the flag. The counter-demonstrators appeared to have several on hand because they were planning on displaying them at a rally later in the day. The police are shown in a photo with only one flag in their hands, and reports about the subsequent, police-approved counter-demonstration don't indicate whether they displayed a flag or not, only that they displayed a banner and were allowed to pass out literature.

I'm guessing that the reason that the defendant is the target of the prosecution is that she officially became the formal leader of the demonstration when she negotiated the terms with the police. That's just a guess. Waving the flag itself is not really the issue.

It's also not exactly clear from the published reports what the relationship is between the alleged provocation of the flag, the requirement to get a permit 48 hours in advance, and the court-imposed fine. Maybe the alleged danger is a justification for taking the permitting requirement seriously in this context, because, in the prosecutor's view, an allegedly dangerous counter-demonstration requires additional police preparation (and bureaucratic approval) ex ante?
9.11.2009 7:46pm
David McCourt (mail):
martinned,

Thanks for your "inside" information about The Eonomist's policy regarding anonymous contributors, though I must say that the policy has been well known to all for the 30+ years that I have been reading the magazine.

So the Dutch government wouldn't protect a member of its own parliament from death threats, and told her she'd better leave the country, because the Dutch are "tight." That's it, huh? There is money, of course, for you Dutch tight wads to give more than 40% of Muslim immigrants public aid. Guess that doesn't leave much to protect the life of a legislator who would like to speak out on public issues. A question of priorities.

I don't see that you actually respond to most of my points; so, a direct question: do you agree with the Dutch Justice Ministry that Van Gogh's film should have been banned by the Dutch authorities, because it was likely to "incite" violence by Muslims? Van Gogh was being a "jerk," according to you, after all. He was really asking for it, speaking his mind like that. The authorities probably should have charged Van Gogh's estate for the street cleaning they had to do after the "Dutchman" he incited was finshed shooting and butchering him.

If you don't think Van Gogh should have been censored, how do you square that with your approval of criminally prosecuting a person for displaying an Israeli flag on a public street?

What is new in your post is your view that the Jyllands-Posten, a broadsheet that is Denmark's largest selling newspaper, is -- apart from its sin of publishing the blasphemous, er, insensitive, cartoons daring to depict The Prophet -- a nest of neo-facist cranks, to the right of Le Pin, and that the whole country of Denmark itself is pretty unregenerate - despite 10% of its population being immigrants. Who knew? Of course, anything that offends the Danes is welcome. Those Danish facists were the only Nazi-occupied people to save the bulk of their Jewish population from extermination (less than 1% of Danish Jews died, while in the Netherlands, 75% died), so that's a strike against the Danes in the "incitement" tables anyway.

Of course, this alarmist headline didn't come from the neo-facist Danes: "More Dutch Plan to Emigrate as Muslim Influx Tips Scales." It wasn't from Fox News or Rush Limbaugh, either, but came from that well known revanchist rag the New York Times: http://www.nytimes.com/2005/02/27/ international/europe/27dutch.html?_r=1

Don't worry. Everything is just fine.
9.11.2009 8:40pm
John C (mail):
Martinned, I would love to hear your response to this quote below.

"....You talk about unsafe situations "emerging," as if it just happens, as opposed to people actually doing it.

The law should impose a duty on people not to riot, not a duty on someone to make sure other people don't riot."

This seems to perfectly capture the logical flaw in your bizarre reasoning. you seem to think some people are responsible for their actions and others are not, and that moreover, some people are responsible for the REACTIONS of others while those people are not even responsible for their own actions. All the responsibility seems to be on one side - it makes no logical sense
9.12.2009 12:15am
martinned (mail) (www):

do you agree with the Dutch Justice Ministry that Van Gogh's film should have been banned by the Dutch authorities, because it was likely to "incite" violence by Muslims?

I'm not sure what film you're talking about. He made many, that was his actual job. Some of them are quite good, like Interview, since remade by Steve Buscemi, with Siena Miller starring. I've never heard of anyone wanting to ban any of his films, and if they did, I'd normally be against.


So the Dutch government wouldn't protect a member of its own parliament from death threats

They did protect her for several years. But they weren't going to keep that up indefinitely.


Van Gogh was being a "jerk," according to you, after all.

Absolutely not. He was amusingly ill-adjusted, and I always enjoyed watching him interview people, reading his columns, etc. Nothing he ever did was ever unreasonable the way the people in the OP were unreasonable.


If you don't think Van Gogh should have been censored, how do you square that with your approval of criminally prosecuting a person for displaying an Israeli flag on a public street?

She went and picked a fight with 1600 pro-Palestinian/anti-Israel protesters. (In the middle of a war, those two are the same, but above someone criticised me for writing "pro-Palestinina, so here you go.) If she had registered with the police beforehand, so that they could make sure to have sufficient manpower on site, or if she had gone and demonstrated one block down, all would have been well. Even here, things would have been fine, but for the fact that the situation was pretty on edge to begin with.


Of course, this alarmist headline didn't come from the neo-facist Danes: "More Dutch Plan to Emigrate as Muslim Influx Tips Scales."

Don't worry, such stuff gets written here all the time. What can I say, there are a lot of people talking out of their asses around here. This muslim-immigration thing seems to have gotten a lot of people "confused".


This seems to perfectly capture the logical flaw in your bizarre reasoning. you seem to think some people are responsible for their actions and others are not, and that moreover, some people are responsible for the REACTIONS of others while those people are not even responsible for their own actions. All the responsibility seems to be on one side - it makes no logical sense

The question is about the law concerning demonstrations. Compared to other forms of speech, it is a form that might require significant state support, in the form of police protection. The police can't protect a counterdemonstration if they don't know there is going to be one. That's why the law in Germany requires that you register your demonstration with the police 48 hrs in advance, that, where necessary, you make arrangements with them about the safety of your demonstration as well as bystanders, and that if you don't do these things, you should refrain from creating an unsafe situation.

All of this is distinct from the law concerning assault, etc. You hit someone, you go to jail. You get hit, you go to the witness bench.

I'm not sure why you think it is impossible for someone to be punished for "the reactions of others". (BTW, note that in this case no actual riot occurred. A "reaction of others" is not necessary for the situation to be classified as "unsafe".) If the reactions of others are forseeable, as they clearly were in this case, there is no reason why the law cannot impose a duty on this young lady as well as on any would-by rioters.

The anti-Israel demonstration gets to protest where the were, because they registered with the police. The agreement they made with the police includes restrictions as to time, place and manner of demonstrating. If the counterdemonstration had gone to the police as well, they would have been given their own street to protest in, and all would have been well.

Finally, I'm not so clear why all the blame for any hypothetical riot should be placed with the anti-Israel demonstration anyway. Such things happen all the time, and usually it looks like two groups of hysterical people yelling at each other from two sides of a police barrier. Things keep getting worse, until someone throws something. In such a setting, I am inclined towards the rule my mother always taught me: where two fight, two are to blame.
9.12.2009 7:18am
John C (mail):
Martinned, thanks for responding.

I suppose one CAN hold people responsible for considering the reactions of others - I suppose there is nothing illogical in this - but lets consider the consequences.

Lets say I want to hold a pro-Israel demo but a pro Pal group comes out and says they will respond with violence. Since I can foresee this violence, am I now responsible for it? It creates a "hecklers veto" - anyone who threatens violence can now prevent me from demonstrating. The law will state that I should have foreseen the violence and am thus responsible for it. In practice, anyone can prevent anyone from doing anything by merely threatening to respond with violence.

Is this compatible with a free society? Surely the law should state that those who threaten violence are the ones who bear the burden of responsibility and surely the law should not require someone to be responsible for the violence of others. Do you really disagree with that?

Yes, I might "foresee" that exercising my rights will lead others to try and violently suppress me, but I do not see why the state should then not protect my rights rather than require me to suppress myself. Such an idea simply isn't compatible with a fee society and just seems outlandish in too many ways to mention.
9.12.2009 3:34pm
martinned (mail) (www):

Lets say I want to hold a pro-Israel demo but a pro Pal group comes out and says they will respond with violence.

That is the normal situation: two planned demonstrations. In that case, the organisers of both demonstrations will talk to the police, and they will hammer out a plan to make sure the whole thing works out peacefully.
9.12.2009 3:54pm
martinned (mail) (www):
..continued from previous (accidentally hit send):

The obligation to make sure that no unsafe situation emerges applies only to an unplanned (or at least unregistered) demonstration.
9.12.2009 3:57pm
David M. Nieporent (www):
Finally, I'm not so clear why all the blame for any hypothetical riot should be placed with the anti-Israel demonstration anyway.
Because they're the ones rioting. (Hypothetically, of course.) Obviously the pro-Israel person isn't rioting, or he/she can be punished for that, and wouldn't need to be punished for exercising free speech. All the blame for rioting should be placed on the rioter.
Such things happen all the time, and usually it looks like two groups of hysterical people yelling at each other from two sides of a police barrier. Things keep getting worse, until someone throws something. In such a setting, I am inclined towards the rule my mother always taught me: where two fight, two are to blame.
How very European. But your mother was wrong. As a writer once wrote, "It needs but one foe to breed a war, not two."

(I could also invoke Godwin here.)
9.13.2009 1:41am
David McCourt (mail):

"...your mother was wrong. As a writer once wrote, 'It needs but one foe to breed a war, not two.'"

Anyone who is Dutch should know this, unless they think that the Dutch share the blame with Germany for what happened on May 10, 1940.
9.13.2009 11:56am

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