The trial against artist Jonathan Meese for imitating a Hitler salute has been postponed following a legal challenge from the defense. German law makes exceptions for artistic freedom, but was Meese's gesture really art?
“Art and science, research and teaching shall be free,” according to Paragraph 3 of Article 5 of the German constitution. But how far does this freedom extend? That was planned to be negotiated on June 18, 2013 in the District Court of Kassel, but the trial has been postponed to July 29, 2013 following a legal challenge on the grounds of judicial bias from Meese's defense team. The state prosecutor has accused him of raising his arm twice to make a so-called Hitler salute in public.
The salutes were made at the event, “Megalomania in the Art World,” which was organized by the German news magazine, Der Spiegel, in Kassel in early June. Meese had been invited as an expert on both art and megalomania. During the public discussion, he advocated nothing less than the “dictatorship of art.”
A painter, sculptor and performance artist, Meese is viewed as one of the most provocative figures of Germany's contemporary art scene.
Artistic gray area
“The use of symbols of unconstitutional organizations” - and the Hitler salute is unquestionably one of them - is an offense under German criminal law. Those found guilty of the offense, which is regulated under Section 86a of the Criminal Code, face punishment ranging from a fine to imprisonment for up to three years. However, the scope of the law has been restricted with a paragraph stating that such behavior is not punishable if it involves art.
The judge, then, will have to decide whether the art clause applies in this case, or whether Meese is still liable to prosecution. Meese told Der Spiegel magazine, "Of course, I am innocent. What I do on stage and in the name of art is protected by the artistic freedom clause in the German constitution."
But where is the line between art and crime?
Anyone who invites Jonathan Meese to a public event, or chooses to be a spectator at such an event, must be prepared not to experience the person he is, but to experience the outspoken artistic persona he has created for himself.
Friend of scandal
The incident in Kassel was not the first time that Meese had publicly made a Hitler salute. Once asked if he could stand at attention in front of a painting by Gerhard Richter, he replied he certainly could "stand up straight in front of horny stuff” and added, after repeating the Hitler salute twice, “It's good, it opens up the body. It's not this measly inward movement.”
This conversation from 2012 remains documented online and available for anyone to access. The web video is also a subject of court negotiations.
Demystification of history
Should artists be allowed to employ gestures and symbols that may be hurtful to other people?
"I can say with good reason that what Meese does is absolutely tasteless," Peter Raue, an attorney and art expert, told DW. "But tastelessness has never been a boundary for artistic freedom. Rather it's an intrinsic part of art."
Breaking taboos and creating scandals is a basic right of every artist, added Raue. For him, it's crucial that Meese's Hitler salute was not meant as a approval of Nazi crimes.
So what did Meese really mean? According to Raue, "Meese has a crazy idea. In a nutshell, if everyone can use the Hitler salute, then it's no longer taboo."
Meese's lawyer, Pascal Decker, said something similar: "The artistic performance of my defendant can and must be interpreted. When Jonathan Meese raises his arm to make the banned Hitler salute, he demystifies general historical experiences.
"For him it's important to devalue things that are considered significant and to dissect them into their components. My defendant is very far away from the actual politics and political organizations that the constitutional order aims to get rid of," continued Decker.
Nothing out of the ordinary
The Hitler salute is not foreign to art. In 2009, Ottmar Hörl caused an uproar with his sculpture of garden gnomes with their arms raised in salute. At the time, public prosecutors decided not to take him to court, saying that the entire exhibition clearly expressed opposition to Nazi ideology.
Meese's case is a bit more complicated since videos of the act are circulating on the Internet. Taken out of context, it can no longer be unmistakably identified as art.
But now it's up to the court to decide. "Should the case go all the way to the Federal Constitutional Court, it will repeal any punishment - without a doubt," Peter Raue believes.
The District Court of Kassel remains calm over the high-profile case. "For us it's just a normal hearing," spokesman Matthias Grund told DW.