27.07.2022, Hessen, Kassel: Eine Frau hält auf der documenta fifteen im Fridericianum die Broschüre mit dem Titel «Presence des Femmes», die 1988 in Algier erschienen ist, in den Händen. Sie enthält weitere als antisemitisch kritisierte Motive. Nach Angaben der Recherche- und Informationsstelle Antisemitismus Hessen (RIAS Hessen) hat ein Besucher der Weltkunstschau die entsprechenden Darstellungen im Museum Fridericianum bemerkt und RIAS Hessen gemeldet. Ausgestellt hat sie demnach die Initiative «Archives des luttes des femmes en Algérie» (»Archive der Frauenkämpfe in Algerien»). Foto: Uwe Zucchi/dpa - ACHTUNG: Nur zur redaktionellen Verwendung im Zusammenhang mit der aktuellen Berichterstattung zu den Antisemitismus-Vorwürfen auf der documenta. +++ dpa-Bildfunk +++

Hatred of Jews and hatred of Israel in visual form, devils with sidelocks, bloodshot eyes and shark’s teeth at the Documenta: “It’s all covered by artistic freedom,” sings Danger Dan, meaning it satirically. In reality, the question arises whether the protection of artistic freedom of Article 5, Paragraph 3 of our Basic Law also applies to the image of the Taring Padi group?

The Federal President, the Federal Chancellor and the Federal Government Commissioner for Culture and the Media believe that the limits of artistic freedom have been exceeded and that the anti-Semitic imagery is unacceptable. Many others did not think so, as the chairman of the Documenta Forum classified the whole thing as a “legitimate expression of imperialist experiences or just a caricature”.

Well, in the end the picture was hung. This is a political and certainly the right decision – but what about the legal situation? A difficult individual trade-off every time. In the meantime, further cases have been added, according to the brochure with pictures of the Algerian women’s movement.

The question remains whether there is also a secure legal basis that is expected to apply in this case and in similar cases in the future.

The freedom of art in Article 5, Paragraph 3 is a strong fundamental right and is not subject to any legal proviso. In order to limit them, attacks on human dignity, which is constitutionally guaranteed in Article 1, are necessary. In the case of a criminal offense under Section 130 of the Criminal Code – incitement of the people – the Federal Court of Justice has affirmed this in the case of a racist rap song.

In relation to the current case, artistic freedom would offer no protection if the incitement to hatred against the artists or the exhibitors was successful. It is uncertain whether this procedure will come about and how it will end; however, criminal proceedings should only ever be the ultima ratio to punish anti-Semitism.

Of course, it would have been better if those responsible for the Documenta had dealt with anti-Semitic content in advance and recognized and named it as such. This is often difficult because there are still anti-Semitic patterns in society today – and at the same time the shame about the Holocaust always represents an emotional hurdle that is difficult to overcome when dealing with anti-Semitic content.

Anti-Semitism has existed for much longer, it is an ancient phenomenon. In pre-Christian times it led to pogroms, was the ideological template for the Shoah, still kills today and delegitimizes democracy with its democratic institutions. He is difficult to grasp and adapts to his contemporary environment like a chameleon.

It can also appear in the guise of cultural freedom and the fight against oppression and for human rights. And he can hide behind fundamental rights such as freedom of art and freedom of expression.

In this sense, the “BDS resolution” of the Bundestag was an impressive, even courageous commitment against anti-Semitism, which hides its hostility to Israel behind artistic freedom. However, it is not legally binding like a statutory regulation. Which leads to the basic problem: there is no legally binding definition and, beyond that, little case law.

There is the IHRA definition of anti-Semitism, and it is helpful and good, but not justiciable and politically controversial. The mothers and fathers of the Basic Law have not been able to grasp anti-Semitism in all its complexity with the wording in Article 1 GG, the protection of human dignity.

Because it is a world view that develops potential for violence because it repeatedly produces the fear of invisible and overpowering evil that must be fought.

That means: We have a loophole. Anti-Semitism threatens our constitutional order and our social peace. But in order to combat it effectively, a strong anchor is missing in our constitution. And unfortunately, it’s not a problem that evaporates or settles down over time.

Hence the plea for a state target obligation in the Basic Law for the prevention of anti-Semitism. She could change a lot. What anti-Semitism is and how it is to be combated would then ultimately also become a definitional task of dynamic case law.

After all, the states of Brandenburg and Saxony-Anhalt have already changed their constitutions accordingly. It would be a permanent obligation for the federal government to consider the dangers of anti-Semitism in political and legislative action and to develop counter-strategies; it would be a task to organize sustainable education and open discourse, or at least to provide the means for this. In science and education, the topic is still underexposed. Hanging pictures at an art exhibition is always a difficult signal that evokes uneasy feelings, no matter what is on it.

A constitutional mandate that expressly outlaws anti-Semitism might have resulted in a different level of sensitivity and responsibility. Something like this doesn’t happen overnight, but this start has to be made.

Danger Dan’s song is supposed to become reality: “It’s all covered by artistic freedom.”