Rock musician Roger Waters, founder and onetime frontman of Pink Floyd, performed concerts in Berlin on May 17 and 18. During a couple of his former band's classic songs, Waters donned a black military-style uniform with a red armband and fired a prop machine gun into the crowd. The costume bore more than a passing resemblance to a Nazi SS uniform, though with two crossed hammers instead of a swastika.
Last week, Berlin police announced an investigation into Waters' sartorial choices and whether they constitute incitement to violence. Unfortunately, the investigation is part of a trend among European nations that cuts against the principles of a free society.
Several European nations criminalize both Holocaust denial and the display of Nazi iconography. Under German law, anyone who displays "flags, insignia, uniforms and their parts, slogans and forms of greeting" of the Nazi regime can face up to three years in prison.
Announcing the investigation against Waters, police spokesperson Martin Halweg told The Guardian, "The context of the clothing worn is deemed capable of approving, glorifying or justifying the violent and arbitrary rule of the Nazi regime in a manner that violates the dignity of the victims and thereby disrupts public peace."
The Wall, the 1979 album that Waters wrote, tells the semi-autobiographical story of a fictional rock star named Pink and his descent into madness. Near the end of the album, a drug-addled Pink imagines himself as a fascist dictator and his concert as a Nazi rally. He foments racist violence, siccing his audience on ethnic and sexual minorities, but when his hallucination passes, he realizes what he's done and begs them to stop.
Waters has worn the same uniform for years when performing songs from The Wall—including in Berlin. He insists that the performance is satirical. In a statement after the recent shows, Waters contended that his "depiction of an unhinged fascist demagogue" is "quite clearly a statement in opposition to fascism, injustice, and bigotry in all its forms."
Bans on the display of Nazi propaganda are surely well-intended, especially in the European nations where those sentiments had such devastating consequences. But such blanket bans have downstream consequences and clamp down on legitimate free expression. After all, the government with the authority to ban offensive speech also has the authority to decide what speech to consider offensive.
In 1961's Rockwell v. Morris, the New York Supreme Court affirmed that a neo-Nazi could not be prevented from speaking publicly. "The unpopularity of views, their shocking quality, their obnoxiousness, and even their alarming impact is not enough," wrote Justice Charles Breitel. "Otherwise, the preacher of any strange doctrine could be stopped; the anti-racist himself could be suppressed, if he undertakes to speak in 'restricted' areas; and one who asks that public schools be open indiscriminately to all ethnic groups could be lawfully suppressed, if only he choose to speak where persuasion is needed most."
In 2014, Russia passed a law that criminalized the "rehabilitation of Nazism," including the display of swastikas. The following year, a journalist was convicted and fined for posting a historical photo depicting German troops in her neighborhood during World War II. Bookstores pulled the Pulitzer Prize–winning graphic novel Maus from shelves because, although it tells the story of author Art Spiegelman's father as a Polish Jew during the Holocaust, the cover photo includes a swastika.
Regardless of the artistic merit of Waters' performance, free societies should refrain from criminalizing speech and expression, even when it's thoroughly hateful or indefensible.
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