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The Treatment of Hate Speech in German Constitutional Law (Part I)

Published online by Cambridge University Press:  06 March 2019


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[Editors’ Note: Prof. Brugger's article will appear in German Law Journal in two parts, the first in this month's issue and the second in Vol. 4, No. 1 (1 January 2003). The article originally appeared in Stocktaking in German Public Law 117 (Bullinger and Starck eds., 2002). It is republished here with the kind permission of NOMOS Verlag, Baden-Baden.]

Public Law
Copyright © 2003 by German Law Journal GbR 


1 Lee, p. 3 (pointing out that this is not, as often assumed, a direct quote from Voltaire, but a line invented later by Evelyn Beatrice Hall as a summary of Voltaire's attitude). See also Bracken, p. 32 (quoting British philosopher Bertrand Russel as saying, “It is an essential part of democracy that substantial groups, even majorities, should extend toleration to dissentient groups, however small and however much their sentiments may be outraged. In a democracy it is necessary that people should learn to endure having their sentiments outraged”).Google Scholar

2 A key phrase supporting this view is “No freedom to the enemies of freedom,” which is the justification for establishing a militant democracy. See infra notes 14 f. and a classic quotation to that effect by the French revolutionary Antoine Saint-Just in Roellecke, p. 3309.Google Scholar

3 See the comparative overviews by Appleman; Douglas-Scott; Fogo-Schensul; Greenspan/Levitt; Kretzmer/Hazan; Minsker; Nier; Stein; Weiss; Wandres, pp. 142 ff.Google Scholar

4 See Delgado/Stefanic; MacKinnon; Matsuda et al.Google Scholar

5 See Fogo-schensul, pp. 247, 276; Walker, p. 159; Sullivan p. 9; Weinstein, p. 146; Jones, p. 42, 153; and Roth, p. 186 (pointing out that this is the dominant approach in liberal democracies outside of the United States and claiming that for this reason the United States is “out of step,” “differs notably,” and plays an “unusual” role).Google Scholar

6 Quoted here after the 1998 English-language edition of: Basic Law for the Federal Republic of Germany (Christian Tomuschat and David Curry trans., Press and Information Office of the Federal Government).Google Scholar

7 See Brugger, Verfassungsstaat; Kokott.Google Scholar

8 See Whitman, pp. 1282, 1303, 1313, 1337; Appleman, pp. 422, 428, 434, 438 f.; Minsker, pp. 117, 155 f., 162 ff.Google Scholar

9 See Wandres, pp. 139, 234; Hofmann, S. 162; Weiss, pp. 900 ff. and infra note 108.Google Scholar

10 Many standard textbooks on constitutional law and commentaries on the Basic Law provide detailed information about these rights. See, e.g., the commentaries on the Basic Law edited by Dreier and Isensee/Kirchhof, especially volume VI. For insightful English-language commentary on German constitutional law in general and free speech issues in particular, see Currie, ch. 4; Eberle; Foster; Goerlich; Karpen; Tettinger. For hate speech commentary by German authors, see Günther; Kübler. See also the comparative literature cited supra note 3. The decisions of the Federal Constitutional Court are cited according to their official collection (BVerfGE) as well as according to their English translations in Decisions of the Bundesverfassungsgericht (Federal Constitutional Court) of the Federal Republic of Germany: 2 Freedom of Speech (1958-1995), 1998. Many of the seminal decisions of the Federal Constitutional Court are also available in English translations from the Institute of Global Law, at, and Kommers.Google Scholar

11 The easily memorized German terms are Schutz von Werkbereich und Wirkbereich (the protection of work and its external effect). See infra note 26.Google Scholar

12 For a description of the definitional coverage of freedom of assembly and association in the Brokdorf Demonstration Case, see BVerfGE 69, 315, 342 f., Decision of 14 May 1985 = Decisions 284, at 292 (“This freedom…protects assemblies and processions…[It] is not confined to events where there is argument and dispute, but covers a multitude of forms of joint action, including non-verbal forms of expression…for instance slogans, addresses, songs or banners….”)Google Scholar

13 Radical political parties have been banned twice in the history of the Federal Republic of Germany. The first to be banned was the extreme right-wing Socialist Empire Party (Sozialistische Reichspartei or SRP) in 1952, and second was the extreme left-wing Communist Party of Germany (Kommunistische Partei Deutschlands or KPD) in 1956. See BVerfGE 2, 1; 5, 85, and the case excerpts and comments in Kommers, pp. 217 ff., and Currie, pp. 207 ff., 215 ff. Currently, the Federal Constitutional Court is considering banning the extreme right-wing National Democratic Party of Germany (Nationaldemokratische Partei Deutschlands or NPD). The ruling is expected in 2002.Google Scholar

14 See references to the free and democratic state order in Arts. 9 (2), 18, and 21 (2) BL and Currie, pp. 213 ff.Google Scholar

15 For a comparative analysis of “militant democracies,” see Fox/Roth, especially ch. 12 by Fox/Nolte.Google Scholar

16 Gitlow v. New York, 268 U.S. 652, 673 (1925) (Justice Holmes, dissenting). For a detailed discussion, see Steinberger, pp. 185 f., 196 ff., 332 ff.; Brugger, Kampf.Google Scholar

17 See Tettinger, pp. 116 f., 120 ff.; Brugger, Rundfunkfreiheit, pp. 31 ff.Google Scholar

18 BVerfGE 57, 295, 319, Decision of 16 June 1981, Third Broadcasting Case = Decisions 199, at 208 with additional references.Google Scholar

19 BVerfGE 7, 198, 208, Decision of 15 January 1958, Lüth = Decisions 1, at 6 f. Constant judicature.Google Scholar

20 See, e.g., Stone, et al., ch. VII A; Brugger, Freiheit, pp. 197 f.Google Scholar

21 BVerfGE 69, 315, 347, Decision of 14 May 1985, Brokdorf Demonstration Case = Decisions 284, at 295.Google Scholar

22 See infra notes 64 f.Google Scholar

23 On the distinction between free speech as a “regular” or a “preferred” right, see Kretzmer, pp. 454 f.Google Scholar

24 Of course, it is also possible that tensions arise within the several categories of consequentialist arguments.Google Scholar

25 See Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) (illustrating the classic American formulation of this approach).Google Scholar

26 Regarding the liberty of the arts covered by Art. 5 (3) BL, the Federal Constitutional Court speaks of Werkbereich and Wirkbereich. “The guarantee of artistic freedom affects the ‘working sphere’ and ‘sphere of influence’ of artistic creation equally. Both areas constitute an indissoluble unity.” See BVerfGE 30, 173, 189, Decision of 24 February 1971, Mephisto = Decisions 147, at 154. The same holds true for the act and the effect of communicative opinions and facts. In the Soldiers-are-Murderers Case, BVerfGE 93, 266, 289 = Decisions 659, at 677, the Court speaks not only of “the right to express an opinion at all, but [also the right to]…choose the circumstances likely to bring the widest dissemination or strongest effect of the proclamation of an opinion.”Google Scholar

27 See Brugger, Book Review, pp. 588 f. The European Court of Human Rights uses this approach in interpreting Art. 10 of the European Convention of Human Rights, which addresses the freedom of speech. The Canadian Supreme Court used this approach in its most famous hate speech case, Regina v. Keegstra et al., 3 Supreme Court Reports 697 (1990).Google Scholar

28 See infra notes 34 f.Google Scholar

29 BVerfGE 90, 241, 247, Decision of 13 April 1994, Holocaust Lie Case = Decisions 620, at 625. See also BVerfGE 61, 1, 7, Decision of June 22, 1982, Election Campaign Case = Decisions 244, at 247: “[The] point of expression of opinion is to produce mental effects on the environment, to act, to mould opinion and to persuade. Accordingly, value judgments, which always seek to secure a mental effect, namely to persuade others, are protected by the fundamental right of Art. 5 (1), first sentence, GG. The protection of the fundamental right relates primarily to the speaker's own opinion….It is immaterial whether his utterance is ‘valuable’ or ‘worthless', ‘right’ or ‘wrong', emotionally or rationally justified….”Google Scholar

30 Zimmer, p. 17. For similar definitions, see Coliver, p. 363 note 1; Douglas, pp. 311, 317; Appleman, p. 422; Hofmann, p. 169;Roth, p. 194; § 130 (2) Penal Code, infra notes 49, 55.Google Scholar

31 See also Art. 20 (2) of the International Convention on Civil and Political Rights (“Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law”) and the related provisions on suspect or discriminatory classifications in Art. 2 (1) of the same pact, and in Art. 2 (1) of the International Convention on Economic and Social Rights, Art. 14 of the European Convention of Human Rights, and Art. 2 of the Banjul Charta on Human Rights and the Rights of Peoples. See also Zimmer, pp. 24, 33, 55, 62 ff., 69 ff., 104 ff. As to the duty to criminalize hate speech and racial discrimination, see Arts. 2 and 4 of the U.N. Race Convention.Google Scholar

32 For an interesting discussion of the topic, see Matsuda et al.Google Scholar

33 Cases where individuals call for a boycott illustrate this dividing line. In the Lüth Case, the call for boycott was mainly based on oral persuasion, which lead the Federal Constitutional Court to find the speech protected by the free speech clause of Art. 5 BL. See BVerfGE 7, 198, Decision of 15 January 1958, Lueth = Decisions 1. See also Landgericht (LG) Mainz, Decision of 9 November 2000, Neue Juristische Wochenschrift 2001, p. 761 (where a TV station's call for a boycott of the right-wing NPD party was considered protected speech). See note 69 infra. Compare BVerfGE 25, 256, Decision of 26 February 1969, Blinkfüer = Decisions 117 (where the Federal Constitutional Court concluded that a strong element of economic coercion was present in the tactics used by the party advocating the boycott and such conduct placed the speech beyond the protection of the free speech clause).Google Scholar

34 BVerfGE 90, 241, 247, Decision of 13 April 1994, Auschwitz Lie Case (Holocaust Denial Case) = Decisions 620, at 625.Google Scholar

35 Id. 249 = Decisions, at 627.Google Scholar

36 Id. 250 = Decisions, at 627.Google Scholar

37 Id. 249 f. = Decisions, at 627. More precisely, the Court could have said “mere or clearly separable assertions of fact.” Here, reference is made to the Historical Falsification Case of the Federal Constitutional Court, BVerfGE 90, 1, Decision of 11 January 1994 = Decisions 570.Google Scholar

38 Another example is inaccurately attributing a libelous quotation to a person, which is not protected by the Basic Law. See BVerfGE 54, 208, Decision of 3 June 1980, Böll Case = Decisions 189 headnote 2: “[Art. 5 (1)] does not protect inaccurate quotation.”Google Scholar

39 The German courts view the Holocaust as a judicially known fact, which is beyond contest. Thus, motions by defendants in Holocaust denial cases to present witnesses supporting the nonexistence of the Holocaust will be denied. See Wandres, pp. 87, 105; Stein, pp. 290 f.Google Scholar

40 See Wandres, p. 189 together with footnote 147; Jarass/Pieroth, Art. 5, marginal note 5.Google Scholar

41 See also Appleman, pp. 431 ff.; Wetzel, pp. 86 ff.; Zuleeg, pp. 54 ff.; Minsker, pp. 138 f., 143; Whitman, pp. 1292 ff.; Tettinger, pp. 115 f.; Günther, pp. 52 ff.; Kübler, pp. 340 ff.; Weiss, pp. 925 ff.; Nier, pp. 255 ff.; Human Rights Watch, pp. 72 ff.; Hofmann, pp. 162 ff.; Stein, pp. 281 ff.Google Scholar

42 The translations are taken from Harfst, German Criminal Law, apart from § 130 of the Criminal Code which was amended in 1994. See Kübler, pp. 342 ff.Google Scholar

43 “Insult” and “defamation” here are used in a wide sense (covering all criminal offences against honor) as well as in their narrower sense. In the narrow sense, “insult” refers to the provision of § 185 only, whereas § 186 covers calumny and § 187 covers defamation. As will be mentioned later, the American notion of defamation is narrower than the broad German notions of insult or defamation.Google Scholar

44 Reichsgericht, Entscheidung in Strafsachen (RGSt), Volume 40, 416, quoted in Wandres, p. 186.Google Scholar

45 See also § 188 of the German Penal Code, which specifically protects public figures (Slander and Defamation of Public Figures), and § 189 (Defiling the Memory of the Deceased), which can be applied to cases of Holocaust denial.Google Scholar

46 See Wandres, p. 184; Lackner/Kühl, Vorbemerkung zu § 185, marginal note 1.Google Scholar

47 See Wandres, pp. 201 ff.; Zuleeg, pp. 55 ff. and infra after note 74.Google Scholar

48 In American constitutional law, the display of these symbols and even public neo-Nazi demonstrations are protected under the free speech clause of the First Amendment. For an enlightening discussion of the controversy surrounding the neo-Nazi march proposed in Skokie, Illinois, see Stone et al., pp. 1071 ff.Google Scholar

49 See also §§ 126, 130 a, 131, and 220 a of the German Penal Code. The translation of § 130 is taken from Kübler, pp. 344 f.Google Scholar

50 Section 220 a of the German Penal Code criminalizes all forms of genocide.Google Scholar

51 See especially Arts. 2 and 4 of the U.N. Race Convention, which include wide-ranging state obligations to eliminate all forms of racial discrimination in the broad sense mentioned supra note 31, and to criminalize such acts. For a discussion of these obligations, see Wolfrum.Google Scholar

52 Reference to this statute is made in the Brokdorf decision of the Federal Constitutional Court, BVerfGE 69, 315 = Decisions 284, at 286 f. Discussed in detail in HUMAN RIGHTS WATCH, pp. 71 ff.Google Scholar

53 This was the case in the Holocaust Denial Case, BVerfGE 90, 241 = Decisions 620, at 621 f., infra notes 95 ff.Google Scholar

54 For a discussion of this requirement, see the Mutzenbacher Case of the Federal Constitutional Court, BVerfGE 83, 130, 131, Decision of 27 November 1990 = Decisions 474, at 475 f., and Kommers, pp. 424 ff. Material appearing on the list may only be made available to adults and must be kept only in commercial spaces off-limits to children and young people. In addition, the Act imposes a ban on advertising.Google Scholar

55 Cited in Kübler, p. 347. The text is modelled on § 130 (1) and (2) of the German Penal Code, supra notes 49 f.Google Scholar

56 Headnotes in the ruling by the Bundesverwaltungsgericht (BVerwG) of 22 January 1997, in Neue Juristische Wochenschrift 1997, p. 2338.Google Scholar

57 See supra notes 29, 34.Google Scholar

58 See, e.g., § 11 of the Press Act and § 9 of the Media Act of the State of Baden-Württemberg.Google Scholar

59 See §§ 86 (3); 86 a (3); 130 (5); 130 a (3); and 193 of the German Penal Code and Decisions 570, at 571 with a representative formulation regarding the Youth Protection Act, supra note 54. According to § 1 (1) of the Act, written material inciting to hatred can be placed on a special shelf and may then be sold to adults under certain conditions. But according to Subsection 2 of § 1: “Written materials must not be placed on the list: 1. owing solely to its political, social, religious or philosophical content; 2. if it serves art or science, research or teaching; 3. if it is in the public interest, unless the means of presentation offer reasons for complaint.”Google Scholar

60 In American free speech doctrine, such viewpoint discrimination by the state is heavily disfavored or even seen as cardinal sin, even if it is directed against evil points of view. See R.A.V. v. City of St. Louis, 505. U.S. 377 (1992) and Sullivan, p. 9.Google Scholar

61 See BVerfGE 7, 198, 209, Decision of 15 January 1958, Lüth = Decisions 1, at 7 f.: “[General laws are] to be seen as meaning all laws that do not prohibit an opinion as such, are not directed against the utterance of the opinion as such, but instead serve to protect an object of legal protection that is to be protected as such, without regard to a particular opinion, to protect a communal value taking priority over the exercise of the freedom of opinion….” The last part of the quotation refers to content-based restrictions on free speech.Google Scholar

62 See Arts. 92 and 95 BL.Google Scholar

63 See, e.g., BVerfGE 82, 272, 280 f., Decision of 26 June 1990, Stern-Strauß Case (Coerced Democrat Case) = Decisions 463, at 469 f.; BVerfGE 93, 266, 292 ff., 313 ff., Decision of 10 October 1995, Soldiers-are-Murderers Case = Decisions 659, at 679 ff., 694 ff., infra note 82.Google Scholar

64 In German doctrine, the seesaw theory is mostly viewed as a separate—the fourth—element of the proportionality test described earlier which comes into play every time government restricts constitutional rights. The seesaw theory can also be seen as call for especially strict application of the third element of proportionality.Google Scholar

65 BVerfGE 90, 241, 248, Decision of 13 April 1994, Holocaust Denial Case = Decisions 620, at 626.Google Scholar

66 BVerfGE 90, 241, 248 f., Decision of 13 April 1994, Holocaust Denial Case = Decisions 620, at 626. For another statement of these rules, see BVerfGE 93, 266, 294 f., Decision of 10 October 1995, Soldiers-are-Murderers Case = Decisions 659, at 680 f.Google Scholar

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