Michael Mannheimer’s Continuing Lawfare Odyssey in Germany
by ANDREW E. HARROD
September 4, 2012
As previously reported at the Middle East Forum's Legal Project, the independent German journalist and researcher Michael Mannheimer received on February 14, 2012, a 2,500 Euro fine from a local German court (Amtsgericht) under German laws against hate speech (Volksverhetzung) for his remarks condemning Islam as an aggressive and authoritarian belief system. Specifically, the court cited Mannheimer's April 8, 2011, internet manifesto calling for "resistance" against the German political and media "establishment" on the basis of a charged uncritical acceptance of unassimilated mass Muslim migration to Germany. Now this past August 16, 2012, Mannheimer's "at the moment coalescing and anonymous legal team" has issued a press release concerning the latest developments in Mannheimer's appeal of his preliminary conviction under a Strafbefehl or punishment order. The press release is available online in German at the conservative German website Politically Incorrect (PI), the original publisher of Mannheimer's manifesto. Judging from this document, Mannheimer's fight for free speech is far from over.
As discussed in the Legal Project article, the press release notes that Mannheimer's manifesto referenced the natural law right of resistance articulated in Article 20(4) of Germany's Basic Law or Grundgesetz. According to the press release, the "interpretation" of Mannheimer's specific call to "[t]ake up arms, when there is no other alternative"
now concerns the judiciary. Did Mannheimer call for violence? Or did he only indicate a basic right that can materialize in the future "when there is no other alternative", that is to say as the last resort in the fight for the maintenance of a free democratic basic order [freiheitliche demokratische Grundordnung or FdGO, a German legal terminus technicus occurring in various passages of the Grundgesetz, such as Article 18].
Aside from this basic dispute, Mannheimer's defense team finds the court's Strafbefehl judgment "conspicuous" in a variety of ways. In the first place, the Strafbefehl "neither cites Mannheimer's statements about Islam nor Islamic religious or political texts. Facts do not therefore necessarily concern the court." The defense team's true "shock", though, came on April 18, 2012, with the arrival of the prosecution's Mannheimer dossier. "Parts of the Strafbefehl presented themselves as almost literal repetitions of the August 16, 2011, criminal complaint from the Imam Baschschar Masri of the Islamic Center [Islamisches Zentrum] in Düsseldorf." "Did," asks the defense team, "the judiciary allow itself to become an extended arm of legal jihad."
In contrast to the court judgment discussed in the Legal Project article, Mannheimer's defense team has vigorously denied that he consciously distorted in his writings the meaning of an inherently benign Islam into a threat for free societies. The defense team's first brief delivered on May 5, 2012, to the new trial court "contrasts hundreds of Koran passages with the respective Grundgesetz articles about the same material." The defense team's "conclusion" was that the "Sharia-Islam is Islamofascism" and that "Mannheimer does not speak falsehood about Islam." "If Sharia-Islam is victorious," summarized Mannheimer's lawyers,
then the Grundgesetz is no more. All fundamental freedoms will be partially or completely devalued and suspended, if they are placed under a Sharia-reservation. Thus the right of resistance postulated by Mannheimer comes within reach, if the state cannot or does not want to protect its citizens from Sharia-Islam.
The defense team's search for an authority on Islam to participate in Mannheimer's defense only seemed to confirm their fears. In response to a request to appear as an expert witness for Mannheimer, Professor Dr. Sven Mohammad Kalisch, Germany's only legal scholar with expertise in Islam, responded that he "in principle no longer" speaks "publicly." "Here," the lawyers inferred, "someone seems to fear for his life. And that is surely not without reason. This as well says a lot, if not everything, about Sharia-Islam and the threatening thundercloud of a Holocaust against all unbelievers over Germany."
The defense team extended their scrutiny of Islam in a second brief submitted to the court on May 25, 2012. This brief contained a "precise analysis" of sharia's legally binding hadith or sayings of Islam's prophet Muhammad as compiled by Al-Buhari or Bukhari, Islam's most respected hadith scholar from the ninth century. The resulting "conclusion" of this hadith analysis was that "[f]or a primitive seventh-century nomad society with patriarchal structure, repression of women, and permanent war against all outsiders Sharia-Islam is appropriate, but it is death for a modern, democratic, liberal, enlightened society." "And against this," asked the lawyers, "no resistance should be allowed if the state fails? Fails a thousand times, as the victims can attest?"
"Hundreds of work hours" and the evaluation of "books by the caseload" concerning "constitutional law and Islamic studies" then led to a third brief deposited given to the court on May 29, 2012. "Sharia-Islam," this brief concluded, "is no peace-loving religion, but rather a system of political rule and detailed legal regulation, which stands in conflict with state law. The state must maintain or give itself up."
The fourth defense team brief reached the court on June 8, 2012. Following the legal analysis of the third brief, this document examined the actual practice of sharia around the world. The defense team's conclusion was that
Sharia-Islam everywhere, where it rules, has lead not to more democracy, freedom, enlightenment, but rather to more tyranny, bondage, and backwardness, and that this lies grounded in Sharia-Islam's self-understanding: If the political, social, and legal order of Muhammad's original community in the seventh century was perfect, than all deviations there from (that is to say, the progress of the last 1,300 years) are not the triumph of humanity, but rather sin and scandal. The free democratic basic order is then evil outright and must be fought. May this order defend itself?
Mannheimer's lawyers speculate in their press release that such scholarly submissions were not pleasing to his judges. "Whoever has already had something to do with German judges," they write,
knows that these individuals often need nothing more urgently than intellectual development aid concerning themes about which these persons have absolutely no clue. And whoever more commonly has something to do with German judges also knows that these individuals hate and react in an allergic manner to nothing more than to receive intellectual development aid concerning themes about which these persons have absolutely no clue. This is because this infringes their idealized self-image of being able to judge everything in a sovereign manner and to hover over the participants.
Thus Mannheimer's lawyers declare that "it was only a question of time before the next hammer blow of the judiciary would come down upon" him. On July 30, 2012, Mannheimer received namely a second Strafbefehl fining him 50 Euros for 80 days, or 4,000 Euros, for defaming and publishing without permission a photo of Albert Bodenmiller, a city councilman in the southwest German town of Rottenburg am Neckar in Baden-Württemberg province. This second Strafbefehl concerned an October 11, 2011, article published by Mannheimer's personal website sharply critical of Bodenmiller as one of the "Enemies of Germany [Feinde Deutschlands]." In this article Mannheimer, in the words of the press release, presented Bodenmiller as an "SED-Man" or member of the ruling Communist party (Sozialistische Einheitspartei Deutschlands or Socialist Unity Party of Germany) in the former East German Soviet-satellite dictatorship.
Mannheimer's lawyers "charitably" describe this second Strafbefehl being "as thin as the sheet of paper upon which it stands." Bodenmiller's personal picture is already publicly available at the city council section of the Rottenburg municipal website, thereby forfeiting the protection given to personal images given under German law. Public figures like Bodenmiller, moreover, must accept that they will appear in media images.
Bodenmiller also rejects the "SED-man" characterization as defamation because he was never a member of the SED. Yet Mannheimer's lawyers note that this analysis "intentionally overlooks" Bodenmiller's position as head of the local Bürgerfreundliche Heimat/Die Linke (Citizen Friendly Home/The Left) party coalition in the city council, a coalition including in Die Linke the SED's nationwide post-German reunification successor party. Mannheimer's lawyers ask why it should be a crime to discuss in a "pointedly exaggerated" manner how Bodenmiller has brought himself into the "bad company" of a party responsible for the "SED-injustice regime" and the "murder of the Berlin Wall dead."
Mannheimer's August 16, 2012, defense brief against Bodenmiller's Strafbefehl indicated that "it is moving on the thinnest of ice" in this matter and that Bodenmiller's case "does not have enough substance to withstand the legal precedents of the Federal Constitutional Court [Bundesverfassungsgericht] concerning freedom of the press and opinion." Yet Mannheimer's lawyers worry that their opponents "are trusting in the normative power of the factual." Various levels of appeals courts "most often stand as one", with judges "often uncritically" accepting the "prejudices" of prior, lower court judges expressed in "false factual determinations", "legal errors", and "legal blindness." Under the circumstances, any ultimate relief in the Bundesverfassungsgericht can demand "years."
Mannheimer's lawyers perceive in the legal actions of Muslims like Baschschar and their leftwing allies like Bodenmiller a legal campaign "to bleed out" Mannheimer financially with legal costs and work hours lost to court preparation. Even though the defense lawyers have been "very obliging in terms of price," Mannheimer is now "financially with the back to the wall" (donations to Mannheimer can be made here). Furthermore, in case of default in paying these or any future Strafbefehle concerning the numerous criticisms Mannheimer has made of Islam and leftist politics, Mannheimer fears imprisonment precisely amongst many Muslim "cultural enrichers" about whom he has written so critically. Given his prior treatment by German authorities, Mannheimer is less than confident that they will properly investigate any harm he might suffer in prison. Thus the issue in question for Mannheimer is not simply a "pair of unconsidered statements" and a "few bucks that he might have to pay for it," but rather his "life's work of publications" and "his bare existence." Germany, in turn, must consider "on which side the state stands." At any event, giving up for Mannheimer "is not an option."
Andrew E. Harrod is a freelance researcher and writer who holds a PhD from the Fletcher School of Law and Diplomacy and a JD from George Washington University Law School. He is admitted to the Virginia State Bar. He has published over 250 articles concerning various political and religious topics at the American Thinker, Daily Caller, FrontPage Magazine, Faith Freedom International, Gatestone Institute, Institute on Religion and Democracy, Investigative Project on Terrorism, Mercatornet, Philos Project, Religious Freedom Coalition, Washington Times, and World, among others. He is a fellow with the Lawfare Project, an organization combating the misuse of human rights law against Western societies. He can be followed on twitter @AEHarrod.