70 Years gg – the freedom of opinion from art. 5 para. 1 gg : is it still allowed to say that??

There’s a battle raging in the public sphere over freedom of speech – or a sham debate? What else is allowed to say and who should determine that? Questions that also cause controversy on the other side of the Atlantic.

"One is allowed to say this." This phrase, which has long eked out an omnipresent but little-noticed existence in common parlance, has made an amazing career in recent years. From a grumpy buzzword used at the pub table, it has become the expression of a relevant social current that believes it is no longer allowed to speak its mind.

The phenomenon is not limited to Germany: In the U.S., a real culture war has been raging for years between the reasons of state of "freedom of speech and the "political correctness" that is mainly located on the left-liberal campuses of East and West Coast universities. The latter, as the presumed deprived of their freedom see it, censors public discourse in order to prevent people from being exposed to disagreeable opinions. A battle that also defined and perhaps helped decide the American presidential campaign, in which Hillary Clinton took the side of minorities and promoted "identity politics" the left served. In the end, the verbally unbridled Donald Trump won.

In Germany, the debate on freedom of speech has gained momentum, especially in the course of the refugee crisis. Anyone who publicly speaks out against the influx of asylum seekers, according to the mantra of conservatives and right-wingers, is immediately "put in the Nazi corner, to muzzle him. But it is not only at one end of the spectrum that such tones can be heard. Even the left-wing politician Sahra Wagenknecht recently complained to her party that anyone "who demands a differentiated view of migration" would be "wrong", the threat of banishment to the "Nazi corner" is imminent. No matter where the criticism comes from, the enemy image is the same here as in the United States: A loud minority of hyper-moralized leftist elites who muzzle a majority in order to impose their cultural values.

Opinion ends where danger begins

If this is true, it would be problematic. Because the Basic Law guarantees in Art. 5 Abs. 1 freedom of opinion – primarily only against the state, but it also represents the goal of a liberal democracy. If this is in danger, the state cannot be indifferent to it. If, however, citizens are to be denied their right to freedom of speech, then it must be determined beforehand what may and may not be said. So where does the opinion worthy of protection end??

"For me, behind the fundamental right of freedom of opinion stands that of freedom of thought" explains Dr. Mathias Hong, Lecturer in Public Law at the Goethe University Frankfurt am Main. "Thoughts are free. Against the attitude, against the having of a certain opinion the state cannot and may not proceed with legal force" he finds. "The protection for the expression of an opinion ends therefore according to the Basic Law only there, where this expression endangers other legal interests, for example the personality rights of others or the peacefulness of living together". Even extreme opinions, according to Hong, cannot be banned simply because of their content, but only if they endanger other legal interests.

But what makes freedom of opinion so important for a functioning democracy?? "Freedom of opinion is vital for democracy because no democracy can exist in the long term if it lacks citizens who take part in the intellectual battle of opinions" Hong explains. "Freedom of expression is also particularly important in a predominantly representative democracy such as that of the Basic Law, in order to also give minorities a protest valve who do not feel sufficiently represented in parliaments. It can also have a stabilizing function."

"Political correctness as a fighting term

In the USA, however, this stability seems to have been lost. There, people are arguing about "political correctness" all over the country of the left, which is attributed to it by conservatives. The discussion culture is overheated, people are irreconcilably opposed to each other. Not only since Donald Trump’s presidency has the country been divided. And even in Germany, there really does seem to be a greater linguistic sensibility taking hold that not everyone can agree on. This showed u. a. to the heated debate about the poem by the writer Eugen Gomringer on the facade of Berlin’s Alice Salomon Hochschule, which was removed because of sexist content. Does "political correctness" bring The high value of freedom of opinion and thus democracy itself is in danger?

The concept of "political correctness is problematic, says Mathias Hong, "if it does not refer to state intervention, but is used as a fighting term against the social ostracism of certain positions." He does not see this as a violation of freedom of expression, because it does not protect one’s own opinion from being judged as reprehensible by others. "Democracy is not unrestricted rule by majority votes", but is based on the idea that everyone, especially members of minorities, have an unavailable status of freedom and equality, which the respective democratic majority must always take into account."

Freedom of speech against the state – and also against private individuals?

The decisive factor for the protection of freedom of opinion is therefore also who interferes with it. In the U.S., Hong said, the distinction between state intervention and disputes among citizens must be made even more strictly than in Germany, because there is no indirect third-party effect of the constitution there. Freedom of speech only works between the state and its citizens, but not between private individuals. "From a European point of view, this causes a strange divergence between very strong protection against state intervention and very weak protection of freedom of expression against the private exercise of power." For example, neither private universities nor private employers would have to respect freedom of speech, e.g. in the case of sanctions such as dismissal. "Free speech, yes, but only against the state.

This can be problematic, Hong says, for example, if it "calls into question the important role of defense lawyers, who should defend every defendant regardless of how morally reprehensible his or her actions are. The case of Harvey Weinstein’s defense attorney, who recently lost his post as dean of the law school at the elite Harvard University, currently provides the template for this. In Germany, this would probably not be so easy; companies are not allowed to dismiss employees for moral misconduct.

While the state on the other side of the Atlantic is not allowed to forbid its citizens to speak under any circumstances, certain statements are punishable in this country. Insults or even incitement of the people are not sanctioned there in many places. Also the Holocaust can deny unpunished, who wants. Freedom of speech in Germany is therefore weaker against the state, but it is also effective against private individuals.

It is difficult to say where the Americans’ ambivalent understanding of freedom of speech comes from, or which model is better. The development towards an almost absolute protection of opinion against state intervention only took place in the USA in the course of the 20th century. Hong notes that the political debate in Europe in the second half of the twentieth century, and in essence probably only after the Second World War, has resulted in a number of new developments. A fundamentally good development, he thinks: "In my view, the uncompromising protection of political speech is quite exemplary, and Europe could certainly take a leaf out of its book, for example if one looks to France or the United Kingdom, according to Hong. At the same time, a "general skepticism about government regulation" also plays a role in the U.S in the U.S." also plays a role, especially in the current U.S. Senate, which has been dominated by conservatives for quite some time.S. Supreme Court.

"More speech" in response to totalitarianism

In Germany, the understanding of freedom of expression has remained relatively constant over 70 years of the Basic Law, despite new developments that could not have been foreseen at the time. The dominance of digital discourse platforms like Facebook or Twitter is certainly one of them. However, the Federal Constitutional Court laid the foundations that are still decisive today as early as 1958 in its famous Luth ruling. But what answers does the Basic Law give to the burning question of how much free speech democracy needs??

The experience of National Socialism, which played a major role in shaping the Basic Law, can teach very different lessons for freedom of speech, says Mathias Hong. "Many see it as an argument for banning and suppressing, if possible, the opinions that led to these crimes against humanity." But then he cites the example of Gerald Gunther, a professor at Stanford, who drew an opposite lesson for himself: as a Jewish child, he himself had experienced anti-Semitic hostility in Germany and fled with his parents to the USA in 1938. There he became one of the most important advocates of freedom of expression, says Hong.

"I think that the constitutional authority of the Basic Law has drawn a similar conclusion: The constitution has to defend itself, that’s why there are precautions like the party ban. Otherwise, however, the best protection against a relapse into an authoritarian dictatorship lies precisely in a robust protection of freedom of expression." The answer would have to "more speech read "not enforced silence" he quotes. The phrase comes from Louis Brandeis, the first Jewish justice of the U.S. Supreme Court.

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