Yeah, there were some real conservative views on what counts as art or education and what does not that influenced that decision I figure.

It’s silly regardless on both sides in my personal view. Like yeah it’s a little silly to not allow it, since the law would easily have allowed for it but also - it’s a Swastika, I’m fine in a video game without it, I’m not gonna die on that specific hill for sure.

Does “anti-constitutional” mean against the German constitution specifically, or the concept of constitutions?

Specifically the German constitution. Or as also worded in the law “the free democratic basic order of the FRG” -“die freiheitlich demokratische Grundordnung der BRD”.

What this phrase means specifically is defined by decisions of the federal constitutional court and includes things like basic human rights, checks and balances, the independence of courts, the multi party system etc.

Disrupting or trying to abolish those basic democratic laws is considered as trying to build a dictatorship or other form of unjust system.

I don’t know the specifics about the KPD case but there are German communist parties, for example the DKP. It’s just that the KPD is considered undemocratic.

There’s plenty of “fair use” cases which would allow it.

§86a STGB allows for the use of “symbols of anti-constitutional organizations” in cases of:

• art (e.g. the movie “Downfall”)
• scientific research
• education
• news or other broadcast (covering Nazi Protests in the US for example, German news station don’t have to censor the Swastika flags or the like)

And probably applying in this case - in protesting said anti-constitutional organizations, for example a crossed out Swastika as a form of protest against Nazis is still very much legal.

Most important is the intent. If you plan to use those symbols with the intent of furthering the ideology of anti-constitutional organizations, it is probably forbidden. The intention has to be clearly against those organizations, otherwise it might be actionable.

Btw the communist party of Germany, the KPD is also considered an anti-constitutional organization and therefore it’s symbols are forbidden in the same way.