Under the Streetlight
A democracy that searches for its opponents where the light is finds its citizens often and its enemies rarely.
I. The streetlight
A man is searching for his keys under a streetlight at night. A passer-by helps him; neither finds anything. Eventually the passer-by asks whether the keys were really lost here. “No,” says the man, “over there in the park. But the light is here.”
The story is usually told to mock bad science. But it also describes how a state proceeds when it sets out to defend its freedom. It searches where it can see.
II. A provision from an emergency decree
The special protection for politicians has an origin worth knowing. Today’s Section 188 of the German Criminal Code entered the code in 1951 as Section 187a, and in substance it went back to a decree issued in 1931 by Reich President Paul von Hindenburg “for the protection of internal peace”, under the emergency article of the Weimar constitution. The instrument thus comes from the toolbox of a republic that was already governing itself by state of exception.
For seventy years the protection was narrowly drawn. It covered only defamation and calumny — false or unprovable statements of fact — but not the mere insult. It was extended to insults only in 2021. At the same time it was made explicit that the protection reaches down to local politics, and since then the offence can be prosecuted even without a complaint from the person affected, if the authorities see a special public interest.
The reasoning was not plucked from thin air. Mayors, local councillors and district administrators were threatened, abused and confronted at their homes. Many gave up their unpaid posts. In 2024 the police recorded around 3,960 offences against members of parliament, members and staff of the largest parties — the second rise in a row and a record. Anyone who criticises the provision has to take this seriously.
The only question is whether the instrument hits what it was built for.
III. A pensioner, a meme and a tablet
In November 2024 criminal police searched the home of a pensioner in the Lower Franconian village of Burgpreppach. On the platform X he had shared an image that, playing on a hair-care advertisement, labelled the then economy minister “Schwachkopf Professional” — roughly, “Professional Nitwit”. The outrage was considerable, and the story spread as proof that a minister sends the police over a joke.
It was not quite like that. Someone had first reported the post to the Federal Criminal Police Office through an online portal, and the search warrant had been issued before the minister filed his own complaint. The search was ordered as part of an investigation for incitement to hatred, concerning another post by the man. The police seized a tablet and found further possibly criminal content. The proceedings over the “nitwit” post were later provisionally dropped, since next to the rest it carried no weight.
One can read the case, then, as the justice system ultimately finding someone who had spread criminal material. But one can also read it this way: a trivial offence opened the door, and behind the door something was found. Both are true. And that is precisely the problem. If a search appears justified only in retrospect, because it happens to turn up something else, any trifle becomes a possible key to someone’s home.
IV. The selection effect
A tool does not work where the danger is greatest, but where it can take hold. A speed camera stands on the clear arterial road where it is easy to set up, not at the blind bend where the accidents happen. A tax audit finds something faster with an employee who has a side income than with a corporation whose profits wander through five countries. This has nothing to do with bad intent. It is a question of effort.
The same effect operates in the protection of democracy. Whoever insults a politician in anger under his real name supplies the evidence himself. Whoever sets out to hollow out democracy methodically chooses his words with care, stays below every threshold, and waits. The real enemies of freedom speak softly. The ones who get caught are the frustrated, saying things nobody would have got worked up about in the past.
The figures show how quickly the instrument was taken up. According to the police crime statistics, around 2,600 investigations were recorded in connection with Section 188 in 2023, 4,439 in 2024 and 4,792 in 2025. Every single complaint can be justified. But the statistic does not measure the danger to democracy. It measures how easily certain remarks can be found. That is the streetlight.
V. The justice system’s bill
Part of the caseload goes back to a few complainants. According to information from the Federal Ministry of Justice, Robert Habeck filed 805 criminal complaints as a minister between September 2021 and August 2024, Annalena Baerbock 513, the minister in third place 26. The figures include insults and threats, and threats against ministers are no joke. But the gap between ministries suggests that attitude plays a part: some report almost everything, others almost nothing.
Each of these complaints lands with a public prosecutor’s office, and the prosecutors are drowning. By mid-2026 prosecutors across Germany reported more than 1.1 million open cases for the first time; since the end of 2020 this backlog has grown by 56 per cent. The justice system has no more time just because the legislature creates more offences. It spreads the same time over more cases. Every hour spent on a meme is missing from fraud, assault and white-collar crime, whose cases drag on or are dropped.
And there is a third effect that appears in no statistic. A line drawn so low that a swear word crosses it invites testing. Whoever faces proceedings over a post becomes a hero in his circle, and imitation becomes a dare. The courts then deal with trivia that the law itself has partly created.
VI. What creates trust
The American psychologist Tom Tyler studied why people obey the law. Fear of punishment is not the main reason. What matters is whether people experience institutions as fair: whether judgements follow the same standards and whether the penalty fits the act. Those who experience that feel bound by the law even when they think individual decisions are wrong.
Those who experience instead that the state strikes with great effort at trifles and leaves the files lying on the big things lose that trust. A house search at six in the morning does not strengthen anyone’s bond with the state. It weakens it — not only for the person affected, but for everyone who hears about it.
The courts have long known this connection. In 1986, in Lingens v. Austria, the European Court of Human Rights ruled that politicians must tolerate harsher criticism than private individuals, because they knowingly lay themselves open to public scrutiny. Whoever seeks office needs composure in the face of mockery. The special protection reverses this relationship: the powerful receive more protection from words than the citizens they govern.
VII. The dilemma of a democracy that defends itself
It would be too easy to leave it there. The German Basic Law was deliberately designed as a “militant democracy”. The Weimar Republic perished partly because its enemies used its freedoms to abolish them. Karl Popper derived from this the paradox of tolerance: a society that gives unlimited room even to intolerance will be swept away by it.
The courts also draw limits. In 2024 the Federal Ministry of the Interior banned the magazine Compact. The Federal Administrative Court found the ministry’s procedure formally correct and the content relevant to a ban, but held that not all conditions of the narrowly construed ground for a ban were met, and lifted it. According to the ruling, freedom of the press and of opinion applies even when racist, antisemitic or anti-democratic content is spread. The oversight works. But it works after the fact: the administration goes to the limit or beyond and is then called back. For the person affected, the search has long since happened.
The former constitutional judge Ernst-Wolfgang Böckenförde put the underlying problem into a sentence in the 1960s that has been quoted ever since: the liberal state lives on preconditions it cannot itself guarantee. It cannot force its citizens to be free-minded without ceasing to be liberal. Every instrument for protecting freedom is therefore also a possible instrument against it.
VIII. Sediments
Günther Anders described how freedom is abolished: not openly, but in its name. The route is so effective because no one wants to object. One cannot be against protecting freedom.
A second mechanism adds to this. A new law is the most visible answer politics can give to a problem. At first it costs nothing, shows the capacity to act and produces a headline. Whether it works, hardly anyone checks. Abolishing a rule, by contrast, brings no applause, only the risk of being blamed at the next incident. So regulations settle like sediment. Each layer had its occasion. Together they form a rock nobody wanted and nobody can survey any more. The emergency decree of 1931 is such a layer, surfacing again almost a century later.
IX. How this essay could be refuted
The thesis of this text can be tested. It would be refuted if it could be shown that proceedings under Section 188 mainly target threats and organised agitation rather than angry individuals. It would be weakened if the 2021 extension had measurably reduced the number of local politicians giving up office. And it would be overstated if the effort these cases cost the justice system were negligible compared with its other work.
We are not aware of any systematic public analysis of which remarks are actually prosecuted and how the cases end. It would be the simplest way to refute this essay — or to confirm it.
X. The question of the heir
There is a simple test for every instrument the state creates to protect democracy. Imagine it falling into the hands of those it was created against. Special protection for office-holders against mockery, prosecution without a complaint, reporting portals for remarks: what would it look like if the political opponent had these tools? The history of the provision itself gives an answer. It was written for a republic that two years later no longer existed.
Whoever takes this test seriously draws the line not at the question of who is being insulted, but of what is happening. Mockery, disparagement and harsh words about the conduct of office belong to politics. Threats, stalking and calls to violence do not, whoever the target. They need no special provision; they are punishable anyway, and that is where the strength of the justice system would be well spent.
Democracy does not defend itself by searching under the streetlight. It defends itself by going into the park, where it is dark and the work is hard. And by trusting its citizens more than its own instruments.