The players and their alleged actions
Lest you have lived under a huge rock for the last couple of weeks, you will have heard about that German comedian (Boehmermann) who in his tv show dared to insult Turkish president Erdogan with a rather (c)rude poem in which assertions were made (involving, for example, goats, shriveled balls, a tiny penis, paedophilia, SM, gang-rape, etc.) that we can only indicate in this fine family outlet.
Erdogan, already enraged by a short and rather brilliant song video that colleagues of Boehmermann at another tv program had produced earlier,
not only demanded the poem also to be taken down, but demanded that the German government – represented by Merkel – allow an obscure paragraph in Germany’s Criminal Code (“Strafgesetzbuch”) be invoked that makes insulting a foreign leader punishable with up to 5 years of prison. That obscure paragraph, 103, goes back to 1871 and has been invoked only a few times previously. Equally obscure, and absurd, is paragraph 104a which stipulates that the government must decide whether it allows for the complaint to go forward under 103.
After a few days of consultation and reflection, Merkel allowed the complaint to go forward, copping plenty of criticism for her decision from the usual bunch of Libertarian simpletons (but the freedom of artistic expression ! and the freedom of speech !), politicians that oppose Merkel on all issues as a matter of principle (Die Linke), or at least saw an opportunity to score cheap public-opinion points (the Social Democrats, her coalition partner, that continues to slide towards oblivion in the polls), and of course the usual slew of (social-)media dimwits and ignoramusses.
The New York Times editors, for example, chipped in, demonstrating for the most part their lack of knowledge about the situation and their lack of understanding of the context. Erdogan silencing all of satire in Germany? Really? Boris Johnson also took it upon himself to lecture the world about the unprincipled decision that Merkel had allegedly taken. Creditable and evidence-based opinion right there. Of course, on top of being mostly spectacularly ill-informed about important details, all these arm-chair commentators had their own motives which we can safely assume had to do with the advancement of their own profile.
The (legal) facts
One fact is of particular importance and it has all but gotten lost in the media storm that has ensued. In his tv show Boehmermann started with a comment on Erdogan’s failed attempt to have that earlier biting song video about him taken down. Pretending to lecture Erdogan directly, and heaping in passing plenty of subtle ridicule on him, Boehmermann first expounded why Erdogan failed in his earlier bid to have the song video taken down. He then explained why some such song video – and any fact-based song video of that make – would be covered by freedom of artistic expression and freedom of speech (“Kunst – und Meinungsfreiheit”) in every civilized country in Europe, or at least the European Union (of which Erdogan would like Turkey to be a member of).
Boehmermann then proceeded and explained where the limit of such satire was, seemingly giving up at some point his attempt to explain legal fine points and instead illustrating with his poem the limits of what can be said. Throughout he stressed – dialoguing with a sidekick — that this was an illustration of what one could not say under paragraph 103. It was all quite brilliant, as these things go. Very funny, too. And it rhymed.
Looking at the context in which Boehmemann recited his poem, it seems to me that it cannot possibly construed as violating paragraph 103. I predict, and I predict confidently, that the judges will agree, dismiss Erdogan’s complaint (or, at worst, slap Boehmermann with a small token fine), and in passing shower Erogan with more ridicule.
(The young Augstein, thinking of himself – once again falsely — as being the legitimate successor of his father, argued that a violation of that paragraph for illustrative purposes is still a violation, in the same way as the illustration of an assault on someone is an assault. This attempted analogy seems pretty obviously flawed but I let the legal experts sort that out.)
The players and their actions
To understand why Merkel’s move was a savvy, and ultimately the only rational one, let us do some backward induction. It is a reasoning procedure that assumes rational (and typically self-regarding) behavior and starts from the outer reaches, or terminal nodes, of the sequential game tree that one wants to analyze. For the sake of simplicity, let us assume it will be the media circus in which Boehmermann, and his lawyers, will get the chance to explain why the 103 does not apply.
(Reasonable people can disagree whether this spectacle is indeed the end of the game. One could, for example, argue that this spectacle is embedded in a larger sequential game whose terminal nodes involve the repeal of the paragraph, something that all parties at this point seem to have agreed on for 2018 already. But let us focus on the more narrowly defined game. The extension just complicates the analysis but does not undermine the key points that need understanding.)
Merkel surely made her decision not by herself but based on legal advice and plenty of consultation and reflection on the payoffs of the actions she had available. I have little doubt that Merkel has been advised that Boehmermann is not likely to face serious consequences under 103 although he may still face consequences when Erdogan fans – of which there are many dimwitted ones even in Germany – will try to go after him (but they will of course do that anyways). It is indicative that Boehmermann is currently under police protection and had to cancel the next instalment of his show. But it was him and the producers, and not the government, that decided on this precaution, contrary to what some uninformed sources have argued or intimated.
Had Merkel decided not to allow the complaint to go ahead, she would have unnecessarily – especially given that she needs Erdogan to sort the refugees mess out – gone confrontational with the dude at predictably very high cost to her and the country. She also would have to continue to deal with the issue (rather than let the court and Boehmermann deal with it) and would have pre-empted what I anticipate to be a lesson for Erdogan about the freedom of artistic expression, the freedom of speech, and for that matter the separation of power – surely it will be spectacular lesson. Hand over the popcorn.
Allowing the complaint to go forward under that silly paragraph was, in game theory lingo, a dominant strategy and it was the clever thing to do. Merkel lobbed the whole affair out of her court, seemingly conceding to Erdogan that he might have a case but at the same time making sure that dude will get yet another fundamental lesson in what satire is allowed to do in Europe. As a matter of fact, her own framing of the situation mentioned – not co-incidentally – Rechts-staatlichkeit (roughly due process and separation of power) and the presumption of innocence as motivators for her decision.
for all I can see Merkel did everything right in this situation. Boehmermann will get the glory for having triggered the repeal of the 103 and 104a paragraphs and has become a household name in Germany and beyond (I never heard about the guy before): It was a brilliant performance by any measure, as others have also observed. Merkel can lean back and enjoy the show – possibly tete-a-tete with Boehmermann — that is certain to follow and meanwhile deal with way more consequential issues, such as the threatened Brexit, the continued Greek crisis, the refugees crisis, and the rise of a very vocal right-wing movement in Germany.
Erdogan will soon notice that his ways of silencing critics – while it seems to work in Turkey for the time being — does just the opposite in Germany and for that matter in most of Europe: While both the Erdogan song video and the poem would have been heard / seen by maybe hundreds of thousands and would soon, without his interventions, have been forgotten like those Greek and Polish magazine covers showing Merkel as Hitler, or dominatrix, and what not, the song video has now amassed at one source alone more than 8 million hits.
You should make sure to watch it because satire does not get much better.
Erdogan’s curiously ill-advised actions have led to millions hearing and seeing the artifacts that he tried to incriminate and thus brought to the attention of those millions what a dim-witted and delusional wannabe dictator Erdogan is. And that’s before his complaint has been dealt with in court.
Update October 5, 2016. The German court has decided to dismiss the complaint, as predicted.