"Blood and Honour" is not "Blut und Ehre"

Recently, the German Federal Court of Justice overturned a lower court's decision to convict an unnamed defendant under a German statute prohibiting the display of Nazi symbols and slogans. The defendant was caught trying to transport a shipment of 100 t-shirts bearing the phrase "Blood and Honour," a direct translation of the German "Blut und Ehre," the motto of Hitler Youth. Factoring into the Court's decision to overturn the conviction was the fact that the t-shirts were in English and not in German.

"By translation into another language, the Nazi slogan, which is characterized not just by its meaning but also by the German language, is fundamentally transformed," it said.

The decision would appear to set a dangerous precedent for copyright owners, specifically musicians. I hope you remember Korean Boy singing "Tuts my Barreh." For words like "ice cream," the importation into another language and culture doesn't seem to be much of a problem. But for material protected by copyright or trademark, the situation gets sticky. The German Court's decision seems to say that by translating a phrase out of the forum court's language, the phrase is taken out of that forum's regulatory framework. In this case, the relevant regulatory framework apparently concerns hate speech associated with a country's lamentable political and military history.

The name of the defendant has not been released, which makes finding the text of the actual decision rather difficult. Any inference made with regards to international intellectual property regulation would be strictly hypothetical without any real bearing in actual case law. Without the text of the actual decision, I'm left spinning my head around the decision by myself. Which is fine by me. Head spinning is one of my favorite past times. My guess is that the mere fact of translation is insufficient to promote the type of restraint exercised by the German Court. Rather, "Blood and Honour" must have obtained a significance that is independent of the original Nazi promotional material prohibited by the German statute. I'll betcha the white power punk scene bore that independent significance.

In July of 1926, Hitler Jugend (or Hitler Youth) became the Nazi party's official youth organization in Germany. It appears that one objective of HJ was to foster membership and support for the Third Reich. Later, they were reformed to perform actual war duties during World War II.

The organization was disbanded by Allied forces after World War II. Though some of it's adult leadership were later tried for war crimes and crimes against humanity, its youth membership were never prosecuted. In fact, membership in the organization was compulsory after 1936. Many of its members resisted HJ's ideological indoctrination successfully and went on to live compassionate and charitably significant lives.

Unfortunately, the message of the Third Reich found fertile ground among other young recruits and later generations outside of post-war Germany. The group's motto, "Blut und Ehre" has since made several appearances in youth and young adult culture. After WWII, world powers competed for allegiance on the global economic, political and social stages during The Cold War. The youth of Europe reacted in a variety of ways, one of which was the resurgence of the Nazi ideology of self-preservation and the development of neo-nazi and white power hate groups. In 1985, the newly reformed British punk rock band Skrewdriver recorded "Blood and Honour," the lyrics of the title track appear as follows:

To dream of freedom in this world
Our banners flying proudly are unfurled
Even if we stand alone we must never hide
For in our hearts there is a sense of pride
Chorus:
For the blood and honor
For the blood and for the pride
For the blood and honor
We must never let our Europe be taken for a ride
We look with caution to the east
We can see the red flag of the beast
Countless millions have died at the Marxists' hands
We would fight and die to keep our land
(Repeat Chorus)
solo
(Repeat Chorus)
Marxists' greedy hands around our throats
Bankers buying up your lives and sitting back to gloat
We should fight to control our people's fate
Europe never was no puppet state

(Repeat Chorus) x3 

Later in 1986, Skrewdriver's frontman Ian Stuart Donaldson helped create a music promotions network for neo-nazi and white power punk bands under the same name, "Blood and Honour."  

With T Shirts to boot.

And it was for a shirt much like this one (well, 100 shirts to be precise) that our unnamed German defendant was originally convicted. For this reason, the Court's focus (or at least the focus of the press) on the fact of translation may be misleading. I believe the Court's restraint, it's decision to keep "Blood and Honour" out of the statutory framework prohibiting Nazi slogans and symbols was informed by Germany's own free speech jurisprudence. 

Freedom of speech is perceived as a fundamental right in most if not all liberal-democratic states. Government intrusion into that right is illegitimate if it's only purpose is to prohibit or preclude certain types of speech. Rather, such an intrusion needs an independently legitimate basis, like the preservation and promotion of a different set of fundamental rights such as those protecting personal and bodily integrity, and should be narrowly tailored. Given Germany's past with anti-semitism and racial persecution focused in the Nazi movement, it would seem perfectly reasonable to prohibit speech promoting Nazi values and agendas. The mere translation of such speech into a different language, by itself, wouldn't seem to dilute the anti-Nazi concerns. The Court can't suppose that nobody in Germany would understand the English translation.

"Blood and Honour," then, must carry more significance than a mere English translation of the German "Blut und Ehre." More than a translation, the phrase's life in European white power punk gives it just as much a Cold War significance as it does WWII. As much of a European (and perhaps American) significance as it does a German significance. In this way, the Court's restraint reflects just as much an internationalist perspective as it does a liberal-democratic perspective. This is a good sign for Korean Boy, assuming "Tuts my Barreh" has obtained a comparable independent significance (at least with regard to American courts).

This isn't to say that the t-shirts aren't otherwise sufficiently offensive to warrant prosecution. It appears that the German Court remanded the case to the lower court to decide two additional issues. The first was whether the use of the Nazi symbols in the phrase "Blood and Honour," aside from the phrase itself, was prohibited by the same anti-Nazi statute. The other issue was whether use of the phrase is sufficient to convict the defendant under a different statute which bans a far right organization of the same name. It's unclear whether that organization is the same as the promotions network. Stay tuned.