Friday, August 19, 2022

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Article Index

1. Germany

In Germany, the Grundgesetz, or Basic Law, serves as the nation's constitution. Among its guarantees is the freedom freely to express and disseminate ... opinions in speech, writing, and pictures and to inform [one]self without hindrance But under the Basic Law, this freedom can be limited by the provisions of general laws ... and ... the right to personal Personal dignity is particularly important under the Basic Law.Article 1, the Law's first provision, provides that [h]uman dignity shall be inviolable. To respect and protect it shall be the duty of all state authority. The German people therefore acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the

In accordance with its Basic Law, Germany has enacted criminal provisions to punish hate speech. Section 130 of the Strafgesetzbuch (StGB), or Penal Code, criminalizes incit[ing] hatred against segments of the population or call[ing] for violent or arbitrary measures against or, more generally, assault[ing] the human dignity of others by insulting, maliciously maligning, or defaming segments of the The Penal Code also includes provisions which limit hate speech forms and messages of particular salience in Germany. Basic Law sections 84 through 86a allow the government to declare certain political parties illegal, to ban their propaganda, and to prohibit symbols associated with such parties. Sections 86 and 130 mention the National Socialist Party by name. Under German law, denying the Holocaust is also a crime if done publicly or in a meeting approv[ing] of, den[ying] or downplay[ing] an act committed under the rule of National Socialism ... in a manner capable of disturbing the public peace

It is important to note that these statutes do not contain intent and violence requirements. While inciting hatred toward segments of a population is a crime, so too is simply assaulting human dignity or denying the Holocaust. These latter crimes do not require a finding that the speech has created harm or led to violence. Nor do they require any evidence that the speech is likely to do so. Merely speaking is enough--evincing a focus on means rather than ends.

Germany's high court, the Bundesverfassungsgericht, or Federal Constitutional Court, has upheld these crimes based upon the primacy Germany affords personal dignity. In 1994 the court considered the case of a conference at which David Irving, a well-known Holocaust-denier, was to speak. The conference organizers were ordered to take steps to ensure that the conference not include content denying Jewish persecution during the Third Reich, including providing warnings about the possibility of this content and immediately stepping in to end such discussion if it occurred. In assessing whether the orders were appropriate, the court looked to the distinction between opinions, which are generally protected, and facts, the protection of which depends on their truth. If a fact is untrue, said the court, it is protected only to the extent opinion is. Because the court found that Holocaust was a proven fact, it upheld the orders under the general principle that the protection of the personality will, as a rule, prevail over freedom of opinion in relation to statements of opinion which are to be regarded as insult ... or According to this decision, it is clear that under German Basic Law even the threat of speech which might insult dignity is proscribable, representing a substantial incursion on freedom of expression.