Do we really have free speech

Free speech

Mathias Hong

To person

is professor for public law at the University of Public Administration in Kehl.

How far does freedom of expression extend in Germany? What can you say and what not? In the following I give an overview of the protection of freedom of expression by the Basic Law (Art. 5 Abs. 1 S. 1 GG), but also take a comparative look at the European Convention on Human Rights (Art. 10 ECHR) and the Constitution of the United States of America America (First Amendment).

The center of gravity: political speech

Free political speech is the center of gravity of freedom of expression. This arises from the history of norms and regulation tradition of this basic right in the free democracies, to which the Parliamentary Council tied in in 1949 and according to which freedom of expression was "directed as political freedom against any kind of paternalism". [1] The Federal Constitutional Court rightly calls freedom of expression "absolutely constitutive" for free democracy. Why? Because only they enable "constant intellectual debate", "the clash of opinions", which is the "vital element" of democracy. [2] No democracy can exist in the long term if it lacks people who can make use of their freedom of expression.

Freedom of expression, however, does not only serve democratic purposes. First of all, it allows all opinions, regardless of their content, and thus ensures "communicative development par excellence" in "all areas of life that are dependent on interaction". [3] With this broad "protection area", however, it does not apply without restrictions. Interventions can be justified within certain limits, and for this the democratic purpose of the basic right becomes important: the more the public opinion formation is restricted, the greater the weight of freedom of expression and the higher the demands on justification. A presumption of freedom of speech applies to statements on matters that materially affect the public. [4]

The democratic orientation towards the formation of public will is not in opposition to individual freedom: freedom is not only the "halved" freedom of the bourgeoisie to pursue his narrowly understood private self-interest, but also the freedom of the citoyenne to take responsibility for public affairs make to declare the interests of the general public to be their individual interest and to mobilize themselves for their enforcement. [5] The right to participate in the formation of public opinion is closely related to the right to democratic participation in public power, which is ultimately anchored in human dignity. [6]

If, for example, students demonstrate within the framework of the "Fridays for Future", then the high weight of such political speech must be taken into account, both for the freedom of assembly (Article 8, Paragraph 1 of the Basic Law), [7] this special The manner in which the expression of opinion protects, as well as freedom of expression, on the basis of which it remains to be judged whether the expressed content may be prevented. [8] If there is a conflict with compulsory school attendance, leave of absence can be considered for individual demonstration participants and caution should be exercised when sanctioning violations of compulsory school attendance. [9] This corresponds to the assumption for freedom of speech, especially in questions that affect the public significantly: What could affect the public more than the fate of all of humanity in view of the devastating consequences of the impending climate catastrophe?

Freedom of expression is intended to ensure that public debate can be conducted "freely, robustly and openly," as stated in a landmark ruling by the U.S. Supreme Court of 1964 is called. [10] They and the other freedom of communication are "inconvenient" basic rights, [11] which also serve to protect minorities who think differently. [12] Giving them a "protest valve" [13] can also have an essential "stabilizing function", especially in a predominantly representative democracy. [14]

A particularly strong protection of political speech characterizes freedom of expression under the European Convention on Human Rights and the Constitution of the United States of America. The protection of freedom of expression differs considerably from one another in these three basic legal systems: It is probably strongest in the world in the United States, but weaker under the Convention on Human Rights, while the level of protection provided by the Basic Law ranges between these two poles.

The picture turns, however, when it is not about warding off state interference, but about protecting freedom of expression from private actors, such as the operators of social networks: While the United States Constitution does not provide any protection against this (state action doctrine), the Basic Law and the Convention on Human Rights provide for a stronger protection - namely a protection at all - by way of the so-called indirect third-party effect of the fundamental rights also against private individuals. The European understanding of fundamental rights thus takes into account the insight that fundamental rights are intended to secure "freedom for all", that is, equal and actually effective freedom that protects against the "potentials of abuse of power, including by social power carriers". [15]

Regardless of such essential differences, political speech enjoys special protection in all three basic legal systems: Like the Federal Constitutional Court, the European Court of Human Rights sees particularly little scope for restrictions of opinion when it comes to political speech (political speech) or to debate issues of public interest (questions of public interest) goes. [16] And also the U.S. The Supreme Court stresses that political speech and statements on public affairs deserve the greatest protection. [17]

Thoughts are free: prohibition of point of view discrimination

In addition to its central importance for democracy, there is another basic idea that also shapes the history of freedom of communication as a whole: thoughts are free. [18] Expressing an opinion must not be restricted simply because having and expressing this opinion as such should be prevented. Restrictions on fundamental rights "are not linked to attitudes, but to dangers to legal interests that result from specific actions". [19] The state therefore remains "under the rule of law limited to interventions to protect legal interests in the sphere of externality", while it is not entitled to access "the subjective interior of individual convictions", the "convictions" and the right to communicate these as such . [20] The state is therefore not allowed to use legal means of coercion to control attitudes; it is only allowed to intervene when expressions of opinion pose a threat to external legal interests, such as peaceful coexistence or the personal rights of members of sufficiently delimitable groups of people. [21]

The basic idea that the state cannot create a "special right" against certain opinions as such can already be found in the Weimar debates on freedom of expression. [22] The Federal Constitutional Court relies on this "doctrine of special law" on two levels: on the one hand, when defining the term "general laws", in which freedom of expression finds its limits according to Article 5 (2) of the Basic Law, and on the other hand also within the framework of general laws Proportionality test that every fundamental rights restriction must face.

General laws that are allowed to restrict freedom of expression according to Article 5, Paragraph 2 of the Basic Law are only those laws that "do not forbid an opinion as such", but rather "protect a legal asset that needs to be protected without regard to a specific opinion serve ". [23] When this is the case, results from a three-stage examination: General laws are only those that either (first) do not tie in with certain content of opinion or (second) tie in with such, but do so to protect legal interests that are in the legal system generally - that is, from injuries in other ways than through expressions of opinion - are protected and (thirdly) are not only directed against certain political, religious or ideological points of view. [24]

In short: A law is not a general law, but a special right against certain opinions if it is not only linked to content of opinion, but even discriminates against certain political, religious or ideological standpoints (for example: only politically "right", but not "left"). Not every link to content, but only a point of view discrimination justifies forbidden special right. This distinction shows a clear comparative legal relationship to the distinction between content discrimination and viewpoint discrimination in the United States. The U.S. Supreme Court sees in the viewpoint discrimination the cardinal sin against freedom of expression, as it were. [25] In the case law of the European Court of Human Rights, however, so far, problematically, neither content nor point of view discrimination has played a significant role.

The prohibition of point of view discrimination applies in principle to all opinion-restricting laws, that is also to laws for the protection of youth, honor or other conflicting constitutional goods. [26] They too must at the same time be general laws. The Federal Constitutional Court has only recognized a narrowly limited exception for laws that limit the propagandistic approval of the National Socialist rule of violence and arbitrariness. [27] Admittedly, not only is there no sound justification for this exception, [28] it is also unnecessary. Because threats to legal interests that emanate from such expressions of opinion can also be averted by neutral and proportionate regulations, without having to create a special right against the "right". [29]

Special rights concept and proportionality

The idea of ​​special rights, according to which opinions cannot be prevented as such, not only applies to the generality of the law from Article 5, Paragraph 2 of the Basic Law, but also affects the general requirement of proportionality, [30] that must observe every law restricting fundamental rights and every interpretation and application of such a law. At this level, too, the basic idea remains the close connection between freedom of thought and freedom of expression: the state must not already subject our ideas and attitudes as such to legal compulsion. The purpose of obstructing certain opinions simply because of their content "abolishes the principle of freedom of expression itself" and is therefore from the outset "illegitimate" as a purpose for laws restricting opinion. The legislature must not want to restrict expressions of opinion simply because of their "purely spiritual effects". [31]

From the principle of proportionality, "a kind of intervention threshold" follows for restrictions of opinion: "Dangers emanating only from opinions as such" are accordingly "too abstract" to justify the prohibition of these opinions; The more a restriction on freedom of expression "results in a content-related suppression of the opinion itself" and the "more mediated and distant the threatened violations of legal interests remain", the more likely it is that the justification for this restriction will fail. [32]

This intervention threshold is not nearly as demanding as the "Brandenburg Test" of the U.S. Supreme Court, according to which expressions of opinion may only be prevented if an imminent illegal act (imminent lawless action) is likely. [33] However, it is based on the same basic idea: the state must in any case not want to prevent or want to force having and expressing an opinion as such. For example, he is also not allowed to swear allegiance to the flag (pledge of allegiance), as the highest court in the United States ruled in 1943 - in the middle of World War II -: "If there is a fixed star in the constellation of our constitution," said Justice Robert Jackson, may prescribe what is orthodox in political, national, religious or other questions of opinion, or force citizens to confess their belief in it through word or deed. "[34]

Freedom of expression for enemies of freedom too

Freedom of expression "grew out of the special need for protection of the critique of power" and finds its meaning in it "unchanged". [35] It therefore basically also includes the right to "criticize the constitution and its essential elements" or to demand the amendment of "essential elements of the free democratic basic order". [36] "Limit the guarantee of human dignity!" or "Reintroduce the death penalty!" are therefore demands that are diametrically opposed to the Basic Law in terms of content. The Basic Law, however, also protects the right to express them unhindered, and relies on the power of intellectual debate "as the most effective weapon against the spread of totalitarian and inhuman ideologies". [37] It therefore basically grants freedom of expression "also to the enemies of freedom", [38] thus also protecting thoughts and opinions that we hate (freedom for the thought that we hate).[39]

On the other hand, the constitution also guarantees, for example, that a politician can be called a "fascist" in an assembly - if this is based on a "verifiable factual basis" and it is "a question that affects the general public with regard to a politician acting in a prominent position" goes. [40]

As a controversial democracy, the Basic Law finally provides for regulated instruments to legally oppose the enemies of its value system. [41] This includes in particular the forfeiture of fundamental rights (Article 18 of the Basic Law) and the ban on parties (Article 21, Paragraph 2 of the Basic Law). However, their use also presupposes a sufficient threat potential, which is why they too "do not allow any prohibition of convictions or beliefs". [42]

Hate Speech and Limits to Freedom of Expression

According to this, freedom of expression also protects so-called hate speech within certain limits (hate speech), i.e. xenophobic, sexist or racist expressions of opinion, in principle even if they are fundamentally at odds with the values ​​of the fundamental rights prohibition of discrimination or even with the value of the same human dignity for all. [43] Of course, the protection of such hate speech has its limits in numerous constitutional norms of criminal law and the protection of privacy under civil law.

The Criminal Code, for example, has a whole bunch of offenses ready that such hate speech can bring about. The two most important are insults (§185 StGB) and sedition (§130 StGB). Insult is the defamatory announcement of disregard or disregard for another person. Incitement to hatred is committed, among other things, by those who incite hatred against (delimitable) sections of the population, who call for violent or arbitrary measures against them or who attack their human dignity (Section 130 (2) No. 2 StGB). The criminal justice system understands hatred to mean an emotionally heightened hostile attitude that goes beyond mere rejection or contempt. Inciting hatred means creating or reinforcing such an attitude in others by acting on them in a particularly intense manner. In addition to the insult and incitement to hatred, there are other facts. For example, hate speech can also be punishable as coercion by threatening a "sensitive evil" (§240 StGB), as a threat with a crime (§241 StGB) or as stalking (§238 StGB). In the case of certain serious crimes, such as murder or a terrorist attack, it can also be a criminal offense to threaten (§126 StGB) or approve (§140 StGB) without attacking certain people or groups, provided that the threat or approval is appropriate, disturbing the public peace. [44]

In many cases, hate speech in social networks is clearly legally inadmissible, while the (so far still massive) problems lie at the level of effective criminal prosecution and enforcement of civil law injunctive relief. The legislature is called upon here to improve law enforcement without violating the fundamental rights of freedom of expression and privacy. [45]

The limits of freedom of expression are not only reached in cases of abusive criticism, formal insults and violations of human dignity. [46] Because even if these (narrowly defined) case groups are not relevant, the necessary consideration can (clearly) be in favor of privacy protection.The first decision by the Berlin Regional Court on the Facebook postings against the Green politician Renate Künast in September 2019, in which the worst insults were rated as permissible expressions of opinion, (already) misjudged this. [47] He can therefore not rely on the case law of the Federal Constitutional Court, which incidentally saw the human dignity of the long-time CSU chairman Franz-Josef Strauss violated by caricatures that portrayed him as a pig copulating with other pigs in judge's robes. [48] The later, partially remedial decision in the Künast case of January 2020 also extends the protection of expression in an extremely questionable manner beyond the limits recognized by the Federal Constitutional Court. [49]

If these limits to freedom of expression are observed, the case law of the Federal Constitutional Court on this fundamental right, contrary to skeptical voices, [50] continues to be sustainable even in the age of digital storms of outrage and populist disinformation. Even if social networks are a phenomenon that the constituent authorities could hardly foresee - that groupthink unleashed by demagogy can threaten human dignity and democracy was well known as such in 1949. It was precisely under the influence of such experiences that the constituent power decided to strongly protect freedom of expression. [51]

This contribution is to the judge of the Federal Constitutional Court a. D. Prof. Dr. Dedicated to Wolfgang Hoffmann-Riem on the occasion of his 80th birthday.