In arguing that the criminalization of Nazism by Germany after the Second World War was a “mistake”, federal deputy Kim Kataguiri (DEM-SP) touched on one of the greatest challenges for contemporary liberal democracies: what is the line that separates freedom of expression and the apology of crime?
When does guaranteeing a group’s freedom of expression mean giving them the democratic instruments to destroy democracy itself? Why, after all, does Germany, one of the most democratic countries in the world, criminalize Nazi speech to this day?
The speech of Kim Kataguiri —who in January announced that he will join Podemos— took place last Monday (7), during the participation of the member of the Movimento Brasil Livre (MBL) in the podcast program Flow, conducted by presenter Bruno Aiub, known as Monarch.
“What I defend, and I believe Monark also defends, is that no matter how absurd, idiotic, undemocratic, bizarre, crude what the subject defends, this should not be a crime because the best way for you to repress an undemocratic, crude idea , bizarre, discriminatory is you giving birth to that idea, so that that idea is socially rejected,” Kataguiri said on the podcast.
In the same program, Monark stated that “there should be a legalized Nazi party in Brazil” and that “if the guy is anti-Jew he has the right to be anti-Jew”.
The ‘false’ paradox of freedom
This Tuesday (8), the presenter said he was “very drunk” during the podcast and apologized for the words. He claimed that he was “insensitive” and that he appeared to be defending “abominable things” when in fact he wanted to argue for free speech. The Flow podcast announced that Monark had been dropped from the attraction’s presentation and left the society that manages the product.
Some advertisers for the show, which has nearly 4 million YouTube subscribers, announced that they would break their contracts with Flow. The Israeli Confederation of Brazil (Conib) condemned, in a statement, “the defense of the existence of a Nazi party” and even the German Embassy in Brazil released a note in which it stated that “defending Nazism is not freedom of expression”.
The day after the episode, the Attorney General’s Office opened an investigation against Kataguiri and Monark for a possible crime of apology for Nazism. In Brazil, publicizing Nazism can result in a sentence of 2 to 5 years in prison and payment of a fine.
The federal deputy took to social media to argue that his defense was for freedom of expression and not Nazism. In a statement, he said that he will “collaborate with the investigations because my speech was absolutely anti-Nazi, there is nothing criminal in defending that Nazism be vehemently repudiated in the ideological field so that the atrocities we know are never committed again”.
Experts on democracy and fascism heard by BBC News Brazil, however, see Kataguiri and Monark’s argument for absolute freedom of expression as a false — and dangerous — paradox.
“One idea that has been circulating more and more is that in a democracy people should have the right to express and do things that destroy democracy itself,” says historian Federico Finchelstein, an expert on fascism at the New School in New York.
Finchelstein appeals to a football metaphor to explain why Kataguiri and Monark’s logic is incorrect. “Imagine that democracy is a football game, with all the rules of the game, like only playing with your feet. Everyone can play, as long as they follow the rules. In defending that some have the right to express and apply ideas that destroy democracy, these people are saying that part of the players will play football with their hands, which destroys the game.”
“It’s something dangerous and typical of fascism, a manipulation to confuse the notion of freedom, as if freedom in democracy includes being free to contaminate others, to eliminate social groups, to silence other people’s voices”, says Finchelstein.
The supposed paradox of democracy — of guaranteeing freedoms that can destroy democracy itself — is not a new idea in philosophy and politics. In 1945, liberal philosopher Karl Popper published his “The Open Society and Its Enemies”, written during the Second World War. In the work, he states that “unlimited tolerance leads to the disappearance of tolerance. If we extend unlimited tolerance even to the intolerant, and if we are not prepared to defend the tolerant society from the onslaught of intolerance, then the tolerant will be destroyed and tolerance with they”.
‘Militant democracy’: the German experience
For Johannes von Moltke, an expert on right-wing movements and their role in the media at the University of Michigan, it was this lesson that Germany failed to understand nearly 90 years ago and that led to having a Nazi government in charge.
“Post-World War II Germany did not ban Nazism just because of the Holocaust experience. The Germans were very concerned about not repeating the mistakes of the pre-Nazi era, the so-called Weimar Republic (1919-1933), which allowed parties like What the Brazilian deputy is advocating is basically the route from an illiberal democracy to fascism, precisely the path that Germany took in the late 1920s, which led to the election of the Nazi Party, responsible for revoking all democratic safeguards in the aftermath”, explains von Moltke.
By taking control of the then fragile and young German democracy, Adolf Hitler not only destroyed democratic institutions but also started to use the German state machine to persecute and exterminate minorities: Jews, blacks, homosexuals. Hitler’s actions led to the Second World War, from which he emerged defeated and the country divided.
In 1949, the government of then West Germany legally banned the use of Nazi symbols, language and propaganda. A scholar of the development of laws against speech and hate crimes around the world, Middlebury College professor Erik Bleich recalls that even the famous “Heil Hitler!” was officially banned by the Germans.
However, it would still take almost two decades for the Germans to start looking critically at their own history, recover the memory of the atrocities of the Nazi period and discuss in schools the crimes committed by the students’ grandparents. Still in the 1960s, it became a crime to “incite hatred and violence against parts of the population”, a law that was updated to also criminalize racism and expressly ban racism and fascism.
The German legal scope is the best example of what has become known as “militant democracy” or “defensive democracy”.
“It is a requirement of a functioning democracy that people tolerate ideas they disagree with. However, some speeches, some groups, some parties can be so harmful that politicians and the public conclude that the risks they pose outweigh the benefits. Germans have seen firsthand where Nazism can lead, which is why Germany is among the most active advocates of what is called ‘militant democracy’ – in other words, the notion that democracy must be defended, even at the cost of restricting some freedoms when those freedoms are being exploited to undermine democracy,” Bleich told BBC News Brazil.
According to Bleich, Germany is the most restrictive democracy while the United States, where it is relatively common to see far-right demonstrations with swastikas and white supremacist symbols, has fewer regulations.
“Both countries still allow a very wide range of speeches and actions, across different ideological spectrums. The difficult part of this story for democracies is figuring out how to restrict, ban or punish only the really dangerous speeches, groups and parties, leaving the scope more wide range of what is allowed. Different countries have developed different solutions to this conundrum,” says Bleich.
In Brazil, during the Bolsonaro government, the issue became the order of the day. On the one hand, government officials were accused of promoting fascist propaganda. In January 2020, the then Secretary of Culture, Roberto Alvim, was fired after releasing a video that made reference to the speech of Joseph Goebbels, Minister of Propaganda in Nazi Germany. He attributed the episode to a “rhetorical coincidence”.
In March 2021, the advisor for International Affairs of the Presidency of the Republic Filipe Martins was accused of making a white supremacist gesture during a session in Congress. Martins denied racist intent in his gesture and was eventually acquitted in court.
On the other hand, members of the government and the president himself began to accuse the Justice of restricting the freedom of expression of Brazilians. His supporters even threatened to invade the Federal Supreme Court, which gave successive decisions against what it considered to be anti-democratic acts by Bolsonaristas. Among the court decisions are the overthrow of internet pages and social media profiles that spread disinformation favorable to the current government.
According to Finchelstein, there is a resurgence of fascism in several countries and Brazil does not escape this global movement, which would be a search for answers to the problems of everyday life, such as the pandemic and its restrictions, economic crises, the intensity of migrations with the globalization. “There is a kind of crisis of democracy. People are unhappy with political, economic and social development. But they seem to forget that the solution that fascism proposes is even worse than a problematic democracy,” he says.
