Constitutional Law Around the Globe: Fundamental Rights and the Freedom of Speech in Germany

This paper exploring the Freedom of Speech in the United States Constitutional Law is part of the series “Constitutional Law Around the Globe”. This chapter of the series focuses on “Fundamental Rights and Freedom of Speech” in contemporary democracies. First in the row, this paper analyzes the Freedom of Speech in the First Amendment to the United States Constitution and how it has been shaped by the Supreme and lower courts over time, especially on the so-called hate speech. A final paper will approach the legal systems composing the series in a comparative perspective.

I. The freedom of speech (freedom of expression) is one of the fundamental political rights. (CF. the heading of Part II of the Carter of Fundamental Rights and Freedoms, hereinafter “Charter”). Its real importance is more political than legal. Historically, it has been mainly a legal protection against any kind of public censorship and a guarantee of the freedom of religion. II. The freedom of speech encompasses the freedom of opinion (including the freedom of religion, see supra). It is a freedom pro foro externo. (Not only pro foro interno.) Forum externum means of course equally a narrow domestic circle, a private party as well as the general public (urbs and orbis). It is without any doubt that it is the general public which is interesting from the point of view of the freedom of speech. It is however practically impossible to an individual to promulgate his opinions to the general public without the help of the mass media. Nobody is however obliged, and cannot be obliged, to disseminate another person’s opinions. (There is even no general right to public response.) Thus, the freedom of speech is a fundamental right, of the citizen, there is however no corresponding obligation to enable him who enjoys this right to exercise it. III. There is an inconsistence between the freedom of speech and the freedom of ownership (s. 11 of the Charter). It is true that s. 11 ss. 3 of the Charter states (similarly as s. 14 ss. 2 of the German Grundgesetz) that “Ownership obliges”. In reality it does not oblige to anything. It follows that de facto everybody is free to disseminate his opinion provided that he owns or, as the case may be, controls the mass media. IV. A part of its aforementioned active aspect, the freedom of speech (of opinion) has at the same time a passive one: nobody shall be wronged because of his opinion, i.e. because of his publicly expressed opinion (unless the law so provides). This principle means obviously not only that nobody shall be prosecuted because of his opinion. It means much more. Let us refer to section 10 of the French Declaration of the Rights Man and Citizen of 1789 which reads: “Nul ne peut etre inquiété…”, i.e. “nobody shall be put to inconvenience” because of his expressed opinion. It is true that in reality such legal protection has never existed, neither in France nor elsewhere. V. The freedom of speech (of opinion) implies tolerance to other person s opinions. In reality it cannot prevent intolerance. It implies further indifference towards the expressed opinion, as far as the decision-making of the State authorities is concerned. This indifference has a double meaning. Firstly, the indifference of the decision-making authority in relation to the person whose rights are concerned. Secondly, the political, religious, etc. indifference of the decision-making authority itself. (As far as the party-allegiance of our Administration is concerned, the contrary is true). VI. Sometimes two special questions are discussed. Namely whether there is a right to error and, as the case may be, a right to lie. The answer is decidedly negative. A scientist, a physician etc. may be wrong. Error can be a research method: the Trial and Error method. Nobody has however a special right to error. One has a right to express erroneous opinions. This is quite a different thing, though. This right follows from the general freedom of speech (of opinion). There is of course the same freedom of rebutting the erroneous assertion. Analogously, the freedom of speech implies the freedom of false speech. On the other hand there is no right to lie. (There is no duty not to lie either.) The freedom of speech does not evaluate the content of the speech. The tolerance to the speech and opinion means also the tolerance to an erroneous or false speech. (I mean the legal tolerance mentioned above, not a moral one.) This tolerance, though, does not prevent the recipient of an erroneous or false assertion to think chat he who is wrong is incompetent and he who lies is a liar.

Questions of biological and social parenthood are posing great challenges to German constitutional law. In the field of parenthood two decisions of the German Constitutional Court can be highlighted. The first one is a judgment from 2003 on the rights of biological fathers which addresses biological parenthood as well as social parenthood. This ruling was a first step in strengthening the position of biological fathers. The other judgment was rendered in February 2013 when the Court held that the non-admission of successive adoption by registered civil (same-sex) partners is unconstitutional, and furthermore stated that same-sex parents can be considered to be parents in the sense of the Basic Law, and are thus protected by constitutional law, if the formal status of parenthood has been assigned to them by private law. SUPREMACY OF LEGAL PARENTHOOD The Federal Constitutional Court largely follows the decisions taken by the parliamentary legislator: German constitutional law mainly focuses on legal parenthood as assigned by private law rules on descent. It is important to note that German private law rules on descent implicitly assume a close correlation between legal and biological parenthood. In German constitutional law the fundamental right to family relations (Article 6 of the German Basic Law) includes a specific fundamental right of parenthood. Under Article 6 paragraph 2 of the German Basic Law the ‘care and upbringing of children is the natural right of parents and a duty primarily incumbent upon them’. Calling this right a ‘natural’ right seems to imply that the main criterion for parenthood is biological parenthood. However, this would be a false conclusion, even though in the majority of cases biological parents are indeed the holders of parental rights. Under constitutional law the status of parenthood is closely tied to subconstitutional rules, notably the provisions of the BGB – the German Civil Code. The Federal Constitutional Court generally considers the very same person who is a parent by subconstitutional family law to be the holder of the fundamental right of parenthood under Article 6 paragraph 2 of the Basic Law. Whether parenthood is rather a biological concept or a social one therefore depends on German private law.

The development of digital technologies affects the legal status of an individual. The task of constitutional justice is the constitutional interpretation of new legal phenomena such as the right to be forgotten. This article aims to analyze the right to be forgotten in the decisions of the Russian Constitutional Court and German Constitutional Court in a comparative aspect. The research methodology is primarily a dialectical method. This method helps the author to identify the content of the right to be forgotten, as well as to determine its role in relation to other constitutionally significant values. The comparative legal method is of particular importance for achieving the objectives of the research and helps to highlight the general and specific in the approaches of the courts to the concept of this right. This approach distinguishes the novelty of this research in comparison with other papers. The use of the dialectical and comparative legal research methods allows drawing the following conclusions. The distinctive feature of the right to be forgotten is its dualistic nature. On the one hand, this is a civil right associated with the right to privacy; on the other, it acts as a way to protect other constitutional rights (for example, the dignity of the individual). This right is not absolute. Some information may be of public interest. To resolve the issue of the prevailing constitutionally significant value in a particular case, the Russian Constitutional Court suggests using the method of finding a balance. The Federal Constitutional Court of Germany emphasized that the right to free personal development and dignity sometimes prevails over freedom of information, especially considering the time factor in the case, as well as the degree of harm caused to a person by links to information posted on the Internet. The German Federal Constitutional Court, characterizing the legal relationship regarding the exercise of the right to be forgotten, highlights that this is a relationship between private subjects with fundamental rights, and refers to the concept of the horizontal effect of fundamental rights (“mittelbare Drittwirkung”) developed in German constitutional law. This article concludes that the decisions of the Russian Constitutional Court and the Federal Constitutional Court of Germany on the right to be forgotten are the guidelines for other courts, as well as the legislator for further improving legal regulation. Taking into account the development of information technologies, the author believes that the constitutional courts will more than once turn to the digital aspects of the legal status of an individual and, in particular, the concept of the right to be forgotten.

The doctrine of German constitutional law is sometimes described as differing fundamentally in its two main subfields: the protection of fundamental rights and the rest of constitutional law, pertaining to the organisation of state powers, the state organs and the relationship between the federal level and the Länder. The development of constitutional law doctrine in the field of fundamental rights is often praised for its sophistication. It is in this field that the German Federal Constitutional Court (FCC) has made its contribution to a transformation of German constitutional law, allegedly from a system akin to a formal framework to a material constitutional order which is thick with values. With respect to the protection of fundamental rights, the court would have, so the argument goes, excelled in setting abstract constitutional standards which further exemplify the content of the constitution. In contrast, its jurisprudence would be less than impressive in the field pertaining to organisational matters. This field would be characterised by a paucity of doctrinal and theoretical sophistication. The present contribution looks into this set of affairs and critically assesses the alleged deficits of constitutional law doctrine in these organisational matters. In particular, it asks whether specific aspects of constitutional law concerning the protection of fundamental rights could be transferred to the organisational domain, for example the principle of proportionality. In this respect, the jurisprudence of the FCC is divided. Whereas the court explicitly rejects the transfer of this notion to questions of state powers and competences, it is employed in other contexts without further justification. The article traces the development of the case law and looks for reasons for this state of affairs. It concludes that a doctrine of »impermeability« which was developed in the late 19th century continues to affect contemporary thinking about the state in German constitutional law doctrine. In essence, this doctrine conceptualises legal relations within the state differently from legal relationships between the state and individuals. In addition, the character of the organisational parts of constitutional law as being particularly close to the political process also prevent a greater level of sophistication of constitutional law doctrine. Finally, institutional aspects have a role to play. A lack of cases prevents the FCC from building up an array of doctrine which is comparable to the state of affairs in the field of the protection of fundamental rights. With respect to organisational matters, the FCC is the court of first and last resort. In matters pertaining to fundamental rights, it can concentrate on the abstract questions of constitutional law and remand cases to lower courts for the decision of the concrete disputes. This option is not available with respect to disputes concerning organisational matters.

Protection of constitutional identity in light of the jurisprudence of the Constitutional Court of the Republic of Poland – a comparative study

Introduction. The paper focuses on a topical topic - the effect of the principle of freedom of speech in martial law conditions in Ukraine. It is noted that in the context of modern global realities, where the preservation of national security becomes the highest priority for the state, the issue of limiting freedom of speech in the conditions of martial law. In this context, the question arises of ensuring the rights and freedoms of citizens, in particular, freedom of speech, which is traditionally one of the fundamental values of a democratic society. The purpose of the paper is to investigate the legal aspects of the principle of freedom of speech during martial law in Ukraine. Results. The author emphasizes that the influence of martial law on freedom of speech in Ukraine is enormous because the ongoing war in Ukraine has a significant impact on freedom of speech. In this regard, during the martial law in Ukraine, freedom of speech is limited. In particular, some mass media were forced to suspend their work because their activities could be considered a violation of martial law. The paper analyzes leading scientists' approaches to limiting freedom of speech during martial law. They consider the conflict between ensuring national security and preserving citizens' fundamental rights and freedoms. The author summarizes that the scientific approach to restrictions on freedom of speech under martial law includes: an analysis of constitutional principles; the relationship with international law; the role of the Constitutional Court is to ensure legality and protect the rights of citizens. Conclusion. The work summarizes that the scientific analysis of freedom of speech during wartime not only contributes to deepening the understanding of the problems of this sphere but also indicates the need to develop effective mechanisms for its protection in crises. It is summarized that restrictions on freedom of speech are possible during wartime.

This article explains the first German climate case filed against the Federal Government in the Berlin Administrative Court in 2018 and decided in October 2019. The article identifies and examines the key elements of the decision of the Berlin Court and it places the legal issues of the case within the relevant framework of German administrative court procedure law, administrative law and constitutional law. The case evolved around the legally binding force of a cabinet decision of the Federal Government which laid down the German greenhouse gas emissons reduction target for 2020. Despite the fact that the application was dismissed for lack of standing, some important legal developments can be derived from the judgment, especially in relation to justiciability of the case and the state’s duty to protect fundamental rights under the German Basic Law (Grundgesetz) in the climate change context. Just after the judgment was delivered, the German Federal Parliament (Bundestag) adopted the first Federal Climate Protection Act in November 2019 and thus defined the state’s new climate targets in statutory form. This changed the legal landscape and claimants consequently abstained from appealing the judgment. However, the German Constitutional Court now has the opportunity to clarify further some of the legal issues that arose in this first German climate case from applying ‘traditional’ legal concepts to the challenge of climate change, if it decides to hear the constitutional complaint which was filed in 2020 against the Federal Climate Protection Act.

The idea of introducing a mandatory national civil service has recently been revived in political, philosophical and legal debates. According to the basic idea, it would oblige young adults to perform a one-year service after choosing between the armed forces and a broad range of civil service-options. The aim is to strengthen societal cohesion or at least prevent disintegration. Against this background, the article first unfolds the broader legal-political context on general integration debates, the legal prohibition of forced labour and shortly looks at a newly introduced service in France. After that, hurdles and possibilities in German constitutional law which vividly resemble its dark past with forced labour until 1945 are being analysed, thereby also taking into account questions that lie in the sphere of both constitutional and public international law at the same time, e.g. extending the personal scope of the service to foreign nationals with a view to the armed forces. The larger part of the article then examines the ideas conformity with public international law norms and the law of the European Union. In a first step, article 4 (2) and (3) of the European Convention of Human Rights and the corresponding jurisprudence of the European Court of Human Rights are being examined while pointing at the special features of the Convention. Then, article 8 (3) of the International Covenant on Civil and Political Rights as understood by the Human Rights Committee and ILO-Conventions are taken into account. After that, the article deals with possible problems that could stem from EU norms on state aid law, fundamental freedoms, secondary law and the Unions Charter of Fundamental Rights. In the last section, the article shortly addresses two minor, albeit important aspects regarding renumeration against the German minimum wage act and problematic aspects of administrative capacity which could become constitutionally relevant under certain conditions. In the end, the article argues that the introduction of a mandatory national civil service would require a constitutional amendment for several reasons, but can be modelled in conformity with human rights norms from public international law and EU law.

Lawmaking means trying to influence the behaviour of citizens and the course of their lives, and one of the functions of the modern state is to improve the living conditions of its citizens. It is, however, the right of citizens to determine their own future and for that reason, Fundamental Rights can be barriers for the lawmaker. The lawmaker is allowed to intrude upon Fundamental Rights. However, every act has to be proportional and, in particular, suitable and necessary. Failing this, an act is unconstitutional. Logical reasons based on legislative fact-finding and prognosis are key elements of proportional law. The Federal Constitutional Court has the authority to control legislative power but if it controls parliamentary acts too harshly, it is in danger of breaking the separation of powers and the principle of democracy. If it controls parliamentary acts too cautiously, it is in danger of disregarding the protection of fundamental rights. Legislative margins of appreciation are a means of reasoning used in rulings by the Court to find a path between judicial activism and judicial restraint. German constitutional law does not contain a ‘political question doctrine’ that clearly points at the margins of appreciation to be granted to lawmakers. One of the most interesting questions of constitutional law is how to find and justify a system of legislative margins of appreciation that can be applied by the Federal Constitutional Court. This contribution tries to show that the internal legislative process influences legislative margins of appreciation and that, therefore, the Court has to control two key elements of the legislative process, i.e. legislative fact finding and prognosis.

One of the principles underlying the Canadian Charter of Rights and Freedoms and the Basic Law of the Federal Republic of Germany, if not the most fundamental one, is the concept of human dignity, shared as a common value by western democracies. During the 20th century, it has become a concept of international and domestic law. In this paper, some of the many questions arising out of the concept of human dignity will be addressed by tracing the approach to human dignity taken in the Charter jurisprudence of the Supreme Court of Canada and of the German Bundesverfassungsgericht. To facilitate the conceptualization of human dignity it is defined in the constitutional context, its legal nature is examined, as well as its purpose and function within our constitutional framework. An analysis of the personal and substantive scope of human dignity follows. It will be shown that human dignity is a complex and multi-facetted concept of both Canadian and German constitutional law. In other words, human dignity is a highly abstract concept generating differences in opinion in all but the clearest cases when applied to the concrete situation of a constitutional dispute. It is apparent that the differences between the Canadian and German views are closely linked to the textual basis of human dignity in the written constitution - or absence thereof. In light of the prominent position of the human dignity guarantee in Art. 1(1) of the Basic Law it was easy to construe human dignity not just as a fundamental value, but as the core value of the constitutional value system, as a binding objective principle of constitutional law and as an individual right. Lacking a similar textual inducement, the Canadian approach is much more reserved. In essence, human dignity is a fundamental value exerting its influence indirectly, specifically on the interpretation of the fundamental rights and freedoms in the Charter. In summary, human dignity is an indispensable compass in our continuing journey to promote and protect the rights and freedoms of the individual. We may not always know where it will take us, but the fundamental value of human dignity will always remind us where we are coming from.

Without much doubt, the two great pillars of American scholarship on the German Basic Law and the jurisprudence of the Federal Constitutional Court are (in the order of first appearance) Donald Kommers's monumental casebook,The Constitutional Jurisprudence of the Federal Republic of Germanyand David Currie's magisterial treatise,The Constitution of the Federal Republic of Germany.Professor Kommers's comprehensive work was a milestone in a long career that has been very substantially devoted to the study of German constitutional law. In the late 1960s, Kommers spent a research year at the German Constitutional Court and, drawing in part on personal interviews with the justices, he published the first major work in English on that court. Since then, Kommers has produced a steady stream of significant works on German constitutional law.

The article examines how the concept of constitutional identity has evolved in German constitutional history since 1871, the year of entry into force of the first Germany-wide constitution. This article outlines the theoretical ideas and historical constellations framing the evolution of the notion of constitutional identity, and helps demystify the legal concept. It shows that during the period governed by the Constitution of the German Reich of 1871, the concept of constitutional identity was, in principle, unknown. It was only during the period of the Weimar Constitution, that the notion of constitutional identity was introduced. In 1928, the notion was used by the anti-democratic constitutional lawyers, Carl Schmitt and Carl Bilfinger, within their different theories of justifying the implicit (constitutional) limits on amendments to the Weimar Constitution. In the course of the drafting of the German Basic Law, there was no reference to the notion of constitutional identity. It was only after the German Basic Law had come into force that the notion (re-)emerged. It was used in some aspects of the legal doctrine in order to interpret article 79(3) of the German Basic Law in the light of the ideas of Carl Schmitt. More recently, it was adopted by the German Constitutional Court in order to justify constitutional limits on European integration. The article ends with an assessment of the development of the German concept of constitutional identity. For this purpose, the German doctrine is contrasted with French constitutional law.

Introduction Part I: Section 1: The theoretical framework and the jurisdiction conundrum in a comparative perspective 1. Judicial Reasoning and New Technologies: Framing, Newness, Fundamental Rights and the Internet Andras Sajo and Clare Ryan 2. The boundaries of jurisdiction in cybercrime and constitutional protection: the European perspective Catherine Van de Heyning 3. The US perspective on the constitutional protection of the Internet: jurisdiction, privacy and equality on line Molly Land Section 2: European Standards for protection of fundamental rights in the Internet 4. Freedom of expression in the Internet: trends of the case law of the European Court of Human Rights Juan Barata Mir and Marco Bassini 5. The Court of Justice of the European Union and the illusion of balancing in Internet-related disputes Filippo Fontanelli Part II: Models of constitutional adjudication on internet issues: a comparative perspective 6. Protection of fundamental rights and the Internet: a comparison between Italian and French systems of constitutional adjudication Paolo Passaglia 7. Protection of fundamental rights and the Internet: a comparative appraisal of Germany and Central European constitutional case law Andras Jori 8. Constitutional adjudication on Internet issues in Poland Krystyna Kowalik 9. The protection of digital expression in the UK: old principles in a new world Jacob Rowbottom 10. The constitutional ripeness of principles in Internet law in the Netherlands Gert-Jan Leenknegt 11. Internet Law, protection of fundamental rights and the role of constitutional adjudication: concluding remarks Oreste Pollicino and Graziella Romeo

Emerging Rights Under Article 19(1)(a) of the Constitution of India