The case of Stefan Niehoff became emblematic of concerns that law enforcement authorities were responding disproportionately to over-the-top criticism of those in power. In spring 2024, he shared another user’s meme on the social network X. It showed then Economy Minister Robert Habeck in an image modeled on an advertisement for Schwarzkopf Professional, a haircare brand. The word Schwarzkopf had been replaced with the similar-sounding German insult Schwachkopf, roughly equivalent to idiot. It was a play on words that might even have made its target smile.

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A Visit at Dawn

Instead, shortly after 6 a.m. on 12 November 2024, police arrived at Niehoff’s home with a search warrant issued by Bamberg District Court. They confiscated his tablet. The public prosecutor’s office said it was investigating a suspected violation of Section 188 of the German Criminal Code.

The pensioner had neither stolen anything nor committed violence against people or property. Yet the authorities still considered it appropriate to search his home at dawn. For most people, a visit at 6 a.m. means being jolted out of bed by the doorbell.

Annalena Baerbock ranked second among federal ministers for the number of complaints filed over statements directed at her. The Foreign Office reported 513 such cases during the same period.

Friedrich Merz has also had citizens prosecuted. While serving as opposition leader, he pursued several hundred alleged insults through the criminal courts. Since becoming chancellor, he has said that he has filed no new complaints, although he has allowed numerous cases opened by prosecutors to continue.

The Return of Lèse-Majesté

Most of the citizens involved were accused under Section 188 of the German Criminal Code. The provision makes politicians somewhat more equal than ordinary citizens.

“All people are equal before the law.” That is the wording of Article 3 of Germany’s Basic Law. The principle does not require every case to be treated identically, since rigid equality can itself produce injustice. Germany’s highest courts have therefore established that like cases must be treated alike and materially different cases differently. But is a politician’s reputation really so different from that of an ordinary citizen?

The central conflict is between protecting a politician’s reputation and safeguarding freedom of expression under Article 5 of the Basic Law. This tension has fueled a growing debate in Germany, with the special protection granted to politicians in recent years facing mounting public criticism.

Section 187a, introduced in 1951, criminalized defamation and malicious falsehoods directed at people in political life. Until 2018, Section 103, the offense of lèse-majesté, also remained in force. It had originally protected the monarch and later applied only to foreign heads of state.

Politicians Must Endure Harsh Criticism

After the controversial comedian Jan Böhmermann insulted Recep Tayyip Erdoğan in a repellent satirical poem broadcast on German public television, the Turkish president filed a complaint against him under Section 103. Chancellor Angela Merkel later supported the repeal of the provision.

The argument at the time was that, in a modern democracy, a head of state should not enjoy greater protection of his reputation than an ordinary citizen. It is therefore one of the ironies of recent history that, at the urging of the same chancellor, lawmakers significantly expanded the special criminal protection afforded to domestic politicians only a few years later by broadening Section 187a and renumbering it Section 188. Critics were already describing it as a new form of lèse-majesté.

Politicians in particular must tolerate harsh, polemical and hurtful criticism, since such language may still be protected by the right to freedom of expression. In political disputes, free speech carries particular weight in a liberal democracy. The formation of political opinion depends on debate that may at times be conducted in sharply confrontational terms.

Because of their position of power, public officials must generally tolerate harsher criticism than private individuals. The Bavarian Supreme Regional Court ruled that describing then Chancellor Olaf Scholz as a Volksschädling – a highly charged German term roughly meaning “enemy of the people” – at a demonstration did not constitute a criminal offense.

A Law That Intimidates Citizens

Section 188 makes insulting politicians punishable by up to three years in prison or a fine. In cases of defamation or deliberate falsehoods, the maximum sentence rises to five years.

The penalties are considerably lower when private individuals are targeted. Insult is punishable by up to one year in prison or up to two years when committed publicly. Public defamation also carries a maximum sentence of two years.

Quite apart from the fact that offenses against private individuals’ reputations are rarely pursued with the same vigor, Section 188 grants the political class an additional privilege.

Prosecutors may investigate an alleged offense under Section 188 on their own initiative, without a complaint from the politician concerned. An ordinary insult, by contrast, generally requires the person targeted to file one.

Whether this already resembles Orwell’s Animal Farm or remains compatible with the Constitutional Court’s jurisprudence on equality and unequal treatment is the central question. The provision is increasingly seen as restricting the freedom to criticize state power and therefore as a serious threat to free speech.

Caught in the Machinery of Justice

Once criticism of those in power is directed at a specific politician and attracts a certain degree of public attention, the person responsible risks being drawn into the machinery of the justice system. The case of the late pensioner Stefan Niehoff illustrates that danger clearly.

When assessing political speech and its possible legal consequences, the imbalance of power between politician and citizen must also be taken into account. An investigation alone can have a profoundly intimidating effect on an ordinary person.

It begins with a letter from the public prosecutor’s office informing someone that he is under investigation. For many citizens, both the letter itself and the question of how to respond are already overwhelming.

Even when proceedings are later discontinued or end in an acquittal, the state can deploy a formidable arsenal of intimidation. Searches of homes, the confiscation of devices and high legal costs can place an excessive burden on an ordinary citizen.

So can public stigmatization, reinforced by the assumption that there must be something to the allegations.

In this way, the state and its law enforcement authorities create a substantial chilling effect even without securing a conviction or penalty order. Fear and deterrence may lead people to avoid criticism that is entirely lawful. “Punish one, educate a hundred.” Mao sends his regards.

A Privilege Written into Law

Higher courts can, of course, overturn such rulings. At the end of 2025, the Federal Constitutional Court quashed several decisions because, in the judges’ view, the lower courts had failed to give sufficient weight to the context and importance of freedom of expression.

Very few citizens, however, can afford the cost or endure the prolonged strain of pursuing a case through years of litigation to the country’s highest court. To avoid further trouble, many agree to proceedings being discontinued in return for a payment, put the matter behind them and become more cautious in future. Mission accomplished. The citizen has been cowed.

The sheer number of criminal complaints filed against members of the public has now spread opposition to Section 188 across the political spectrum. Calls for its repeal have come not only from the Alternative for Germany and the Free Democratic Party, but also from senior Christian Democratic politicians and prominent legal scholars.

Jens Spahn, leader of the Christian Democratic parliamentary group, has argued that the provision should be abolished because it has created the impression that “the powerful” have granted themselves special privileges.

Calls for Repeal Go Unheard

Media lawyer Joachim Steinhöfel has made the same demand. He accuses the Christian Democrats of merely announcing a debate when their parliamentary majority would allow them to change the law.

Volker Böhme-Neßler, professor of constitutional and media law at the University of Oldenburg, has gone further, describing Section 188 as a “foreign body in the criminal law of a democracy”.

On 12 June 2026, the justice ministers of Germany’s federal states agreed that the enhanced protection should in future be limited to municipal officeholders and elected representatives. Under the proposal, senior politicians at federal and state level would receive only the ordinary protection provided by Section 185 of the German Criminal Code.

For now, however, these remain little more than warm words. As long as the law remains in force, so does the principle: “All animals are equal, but some animals are more equal than others.”