Flag Desecration Case

The Germany Federal Constitutional Court considered two consolidated cases challenging criminal prosecutions under § 90a of the German Criminal Code, a statute criminalizing desecration of the German flag. In the first case, a book-distribution company sold copies of the antimilitary compilation Leave Me in Peace. The back cover of the book showed a collage of two photographs, which taken together showed a man urinating on the German flag. The local court imposed a fine on the manager of the book-distribution company for violating § 90a. The local court also rejected the argument that the artistic merit of the photographs protected the manager and the book-distribution company from liability. The regional court upheld the local court’s decision, causing the manager to appeal to the Germany Federal Constitutional Court. While the criminal case against the manager progressed, the magazine Fellow Citizens!—Odenwalder Pamphlet published a report on the criminal case against the manager of the book-distribution company. The report included the photographs at issue, prompting a criminal complaint against the magazine. The local court fined the magazine staff member responsible for the report, finding that the staffer had violated § 90a as well. The regional court also upheld the local court’s judgment as to the magazine staffer, causing the staffer to appeal to the Germany Federal Constitutional Court. On appeal, the manager and the staffer disputed the regional court’s conclusion that the reputation and dignity of the federal state enjoyed constitutional protection. Instead, both the manager and the staffer argued that the Basic Law for the Federal Republic of Germany provided for freedom of expression and for freedom of the press such that the photographs were protected expression regardless of the injury to the German flag.