There's only one way in which I care about the Erdogan thingy -- as a pretty interesting legal puzzle. As for all the self-righteous German bloviation about Freedom of Speech, The Whims of a Despot, etc. -- that's all a bunch of hooey nobody except a tiny journalistic elite cares about.
From a purely legal perspective, there's a good case Böhmi should be found guilty and fined. Just so nobody don't get the wrong idea, let me explain that I find the 'insulting foreign leaders' law silly, and believe Germany should have got rid of it a long time ago. I also have doubts about whether a modern legal order needs the category of 'abusive criticism' (Schmähkritik). I am talking here descriptively about German law as it is, not as I might wish it to be.
And under these laws, Böhmi's guilty. The 'insulting foreign leaders' law will obviously be interpreted in light of artistic and political freedom guaranteed by the German Basic Law. But here's the thing: artistic freedom, satire, etc. have limits. German magazines can be and have been punished for satire that 'goes too far' (I'm lookin' at you with admiration, Titanic). The key distinction is whether there is a 'Sachbezug' -- roughly, some relationship to a recognized political or social issue. It's a weighing test: the severity of the insults against the strength of the relationship to a legitimate subject of debate.
Böhmi's 'poem' fails. It wasn't a puppet-show, or a song, or a sketch, or even a straightforward political commentary. It is nothing more than a collection of racist insults that go far beyond what German law permits in any case. Goat-fucker, kiddie-porn devotee, carrier of gang-bang related sexual diseases, etc. All of these insults are illegal in Germany, even when used sarcastically and even when nobody could be expected to believe there was truth in them. That's how German law works. If Böhmi had said these things about a private persons on national television, it is 100% absolutely ironclad certain he would be convicted. There are literally hundreds of cases on exactly this subject. There was only a brief mention of political issues in the 'poem'. Böhmermann himself, as he read the poem, said that it was illegal. He even entitled it 'Schmähkritik' (abusive criticism). Böhmi consciously, knowingly, by his own admission engaged in conduct that is against the law in Germany.
And if this argument doesn't convince you, let's do a Gedankenexperiment: Böhmi reads a poem about the Israeli President Reuven Rivlin calling him a 'dirty Jew', 'child-murderer', a 'racist warmonger', and a 'fat, malodorous pig'. That is the level of rhetoric directed at Erdogan. Would German politicos and journos be whining about freedom of expression and kowtowing to foreigners? Of course not. Any judge worth his salt, however, will see that these two cases must be treated equally, if the idea of a principle-driven legal system is to have any meaning at all. The issue isn't which foreign leader was targeted, it's what was said.
So he should be found guilty, and I think he will. This is not a case about freedom of expression. This is a case about whether a person who publicly announces he is going to break the law and then does so should be punished. The answer is, and should be 'yes'. The best analogy here is to Joseph Gibbons:
Artist and former MIT professor Joseph Gibbons learned this week that robbing banks, even in the name of art, will still land you in jail. He pleaded guilty to burglary in the third degree this week in a Manhattan court.
Gibbons was arrested in January for a heist staged on December 31 at a Capital One bank in New York's Chinatown. According to court documents, he made his demands for cash in the form of a polite note asking the teller for a donation for his church, and then took $1,000 (see Artist and Former MIT Professor Robs Banks Claiming It's His Art).In November, Gibbons held up a bank in Rhode Island using the same method, and made off with $3,000.
Both times, Gibbons videotaped the theft. “He was doing research for a film," his cell-mate, Kaylan Sherrard, told the New York Post. “It's not a crime; it's artwork…He's an intellectual."
Gibbons went to jail because freedom of expression does not cover illegal activity. That's just as true in Germany as it is in the U.S. Whether you agree with Germany's restrictive freedom-of-expression laws or not, Böhmi broke them.