Article 5 of the Basic Law declares that:
The article affirms the right of citizens and those residing in Germany to express their opinions freely, and protects freedom of speech both in the interests of individuals and the democratic process. It is a broad right, one which also covers statements that may be harsh and extreme and may appear defamatory. The limits listed in the second section of Article 5 come into play in situations where free speech conflicts with general laws, with laws protecting youth, and with the right to uphold personal honor. The right to freedom of expression has also come into conflict with criminal law in diverse cases involving political statements and use of the Internet to disseminate right-wing propaganda and pornography.
In cases where expression of opinion is combined with a claim of fact, the right to express that opinion is protected by the Basic Law to the extent that its basis in fact can be verified. Should this factual basis be disproved, German constitutional courts xwould generally rule that individual rights (Persönlichkeitsschutz) take precedence over freedom of speech.
The precedence of individual rights and the distinction between the expression of opinion and claims of fact underlie the prohibition of the so-called "Auschwitz-Lüge" ("Auschwitz lie"). The expression was first coined by right-wing extremists and anti-Semites both in Germany and elsewhere to deny the systematic mass murder of European Jewry in Auschwitz and other concentration camps under the Nazis. The "lie," they maintain, was invented by Jews to defame Germans and to exploit them financially. In the meantime, the expression has acquired a broader meaning and now serves as a shorthand description of assertions denying that the Holocaust occurred.
The Criminal Code, in its Sections 185, 189 and 194, prohibits the defamation and denigration of the character of deceased persons and make such denigration punishable by law. The statement that Jews were not persecuted during National Socialism is clearly false. The mass murder of Jews in the gas chambers of the Third Reich is a historical fact that has been proven by countless witness statements and documents, numerous court rulings and extensive historical research.
In dealing with denial of the Holocaust, criminal law clearly finds itself in conflict with the right to express one's opinion. While recognizing that prohibiting the "Lüge" represents a limitation of the right to free expression, German jurisprudence holds that the injury to the personal honor of those defamed (Jewish citizens) weighs so heavily that it takes precedence over freedom of expression.
In a ruling issued in April
1994, the Federal Constitutional Court confirmed
that Holocaust revisionism is not protected under
the Basic Law's guarantee of freedom of opinion.
"In weighing the importance of free speech against
that of individual rights, courts must consider on
the one hand the severity of the offense caused by
Holocaust denial to the Jewish population in light
of the suffering inflicted upon it by Germany. On
the other hand, the opinion expressed is not
particularly deserving of protection," the
constitutional court judges wrote, "stemming as it
does from a claim of fact that has been proven
untrue. This court has consistently protected the
personal honor of those defamed above the right of
others to make patently false
In a ruling issued in April 1994, the Federal Constitutional Court confirmed that Holocaust revisionism is not protected under the Basic Law's guarantee of freedom of opinion. "In weighing the importance of free speech against that of individual rights, courts must consider on the one hand the severity of the offense caused by Holocaust denial to the Jewish population in light of the suffering inflicted upon it by Germany. On the other hand, the opinion expressed is not particularly deserving of protection," the constitutional court judges wrote, "stemming as it does from a claim of fact that has been proven untrue. This court has consistently protected the personal honor of those defamed above the right of others to make patently false statements."
The "Auschwitz-Lüge" may also be prosecuted under Section 130 of the Criminal Code, which makes incitement (Volksverhetzung) a punishable offense. The current German legal interpretation of incitement protects public peace and human dignity. The constitutional foundation of the Federal Republic of Germany recognizes no interest that could justify injuring the personal honor and dignity of some of its citizens and promoting enmity and hatred toward them.
Germany is not, incidentally, the only nation that considers denial of the Holocaust to be beyond the limits of free speech. France passed a law in 1990 that makes it a criminal offense to dispute the facts of the Holocaust as recognized by French courts or the 1945 international war crimes tribunal held in Nuremberg. A similar law exists in Italy. On an international level, the European Union Council of Ministers agreed in March 1996 on a "Joint Plan of Action Against Racism and Xenophobia" that would cover both denial of the Holocaust and a wide range of other hate crimes. The Joint Plan, which followed statements on racism and xenophobia made at recent EU summits, provides a framework for addressing differences among criminal law systems within the EU regarding racist and xenophobic behavior. The EU, the Council of Ministers proclaimed, must recognize the need for international cooperation in order to prevent perpetrators of racist and xenophobic activities from exploiting the differences in laws by moving from one country to another. To that end, the EU states agreed that members who had not done so already would create laws that prohibit incitement, condoning crimes against humanity, dissemination of racist materials and participation in racist or xenophobic activities.
"Soldiers are murderers"
The rival claims of freedom of expression and protection of individual dignity also stand at the center of the public debate in Germany prompted by a ruling the Federal Supreme Court issued in 1994. At issue was whether the slogan "Soldiers are Murderers" (Soldaten sind Mörder) put forward by the pacifistic writer Kurt Tucholsky (1890-1935) defamed the members of Germany's armed forces. The "Tucholsky quotation," as the slogan is known, has appeared on banners at demonstrations and on bumper stickers. In recent years, a handful of peace activists have been taken to court for defamation for displaying this slogan. They were tried and sentenced in lower courts either for incitement (Section 130 of the Criminal Code) or for defamation of character (Section 185), after the judges ruled that the statement represented an attack on the dignity of the soldier as an individual.
The cases moved up through the court system and in August 1994, the Federal Constitutional Court reversed the lower courts by ruling that the "Tucholsky quotation" is not inflammatory or defamatory in every instance. Lower courts, the constitutional judges argued, had misinterpreted the quotation by assuming the word "soldier" has been used in a strict legal sense; in truth, they said, the defendants were more likely to have used the word colloquially. Likewise, the judges continued, the term "murder" was not being used broadly to indicate all killing of humans. The quotation as a whole could thus be understood to indicate that the profession of soldiering could involve the killing of human beings.
On November 7, 1995, the Federal Constitutional Court ruled again on the quotation on appeal. The First Chamber upheld the legality of the quotation under certain circumstances, maintaining that its use must be considered on a case-by-case basis. If used as a general critique of the soldier's profession (Soldatentum) or of "war as occupation" (Kriegshandwerk) in the context of a discussion of an issue, according to the judges, the quotation is protected. If it is used as a character judgement upon "soldiers as people," however, or is aimed at a specific person, it may be considered defamatory. The court reversed the conviction of a lower court and sent the case back for reconsideration; the defendants were then acquitted.
Thus, a statement is not automatically defamatory or slanderous simply because it is exaggerated or insulting, but it may become so if judged to have been made with the primary intention of defaming a person, rather than as an honest confrontation with the issues. The individuals in question, the court found, were using the quotation as part of an intellectual and political discussion and were also professing their own pacifist beliefs. Additionally, one cannot assume from the statement that it is meant to refer to Bundeswehr soldiers alone; the speakers may have meant all soldiers worldwide.
"Censorship" on the Internet
With the rapid expansion of the Internet and its seemingly endless freedom to disseminate information of all kinds, new concerns have arisen about conflicts between the right to free speech and the legal mandate to protect young people.
Because the Internet and
commercial online providers may be easily abused by
criminals and because online users may access any
available data, German legal authorities have
examined data for possible violations of Section
131 of the Criminal Code (depiction of violence),
Section 184 (distribution of pornography) or
Section 130 (incitement to hatred). Prosecution of
such violations on the Internet focuses on the
providers, such as CompuServe, AOL or T-Online, as
well as those who actually produce the offending
Because the Internet and commercial online providers may be easily abused by criminals and because online users may access any available data, German legal authorities have examined data for possible violations of Section 131 of the Criminal Code (depiction of violence), Section 184 (distribution of pornography) or Section 130 (incitement to hatred). Prosecution of such violations on the Internet focuses on the providers, such as CompuServe, AOL or T-Online, as well as those who actually produce the offending material.
Shortly after the Munich investigation of pornography on the Internet began, the network service T-Online, a subsidiary of Germany's main phone company, Telekom, reported that it was blocking access to a web site maintained by German-born Canadian Ernst Zündel. Zündel, a self-proclaimed "Holocaust revisionist," has distributed materials contending that the Nazis' genocidal assault upon the Jews of Europe did not take place. Based in Canada, Zündel is widely believed to be a major international purveyor of anti-Semitic hate literature and was the focus of an investigation by the Public Prosecutor's office in Mannheim (Baden-Württemberg) in early 1996 for possible violations of German laws. In contrast to the CompuServe investigation, the prosecution focused on the producer/distributor of the material, Zündel, rather than on the online provider. Zündel was charged with violation of Section 131 (depiction of violence). The Mannheim officials also announced, however, that they were looking into the possibility that network providers could be criminally liable under German law for allowing their subscribers access to web sites such as Zündel's.
Neo-Nazi groups and individuals both in Germany and elsewhere have recognized the opportunities offered through the Internet and increasingly avail themselves of them, the North Rhine-Westphalian office of Germany's domestic security service (Verfassungsschutz), reported in early September 1996. With increasing technical sophistication, for example, neo-Nazis have begun to hide their materials in mailboxes. A network of such mailboxes, called the Thule Network, has so far proven inaccessible to authorities. In the United States, too, the Internet has publicized freedom of speech issues by thrusting obscure rightists into the electronic spotlight. One such example is Arthur Butz, an engineering professor at Northwestern University who set off a controversy when he used Northwestern's site to publicize his anti-Semitic writings.
The Internet is of course equally vulnerable to far left groups. In mid-September 1996, the Federal Prosecutor's office in Karlsruhe (Baden-Württemberg) began investigating several online services that provide access to the publication Radikal. The first issue of Radikal to be made available on the Internet in its entirety included articles promoting terrorism, such as one on disabling rail transit, the prosecutor's office reported.
A draft multimedia law approved by the German cabinet in December 1996 promised to decrease the chances of future conflicts of the sort between CompuServe and German judicial authorities. If the draft becomes law, providers will be responsible for ensuring only that the content of the material they themselves post is in adherence with Germany's laws. They will no longer be held accountable for information made accessible by customers, unless, that is, it can be proven that the provider knew of the illegal contents, had the technical capability to block the information and could reasonably have been expected to do so.
Criminal Cases Involving U.S. Citizens
German law enforcement officials began criminal proceedings against U.S. citizens during 1996 in two cases revolving around freedom of speech issues. In Hamburg, the Public Prosecutor's Office brought charges of incitement to violence and hatred (Section 130) and 37 other offenses against Gary Rex Lauck of Lincoln, Nebraska.[*] Lauck is the self-styled leader of the foreign branch of the Nazi Party (Nationalsozialistische Deutsche Arbeiterpartei/Auslands- und Aufbauorganisation). Together with the Institute for Historical Review, a California-based pseudo-scientific clearinghouse for revisionists, he leads the list of prominent U.S. right wing extremists. Lauck has long produced extremist publications and propaganda materials and German prosecutors consider him the leading producer and distributor of such materials to neo-Nazi groups in Germany. Lauck was arrested in Denmark in March 1995 and extradited to Germany six months later. He went on trial in Hamburg on May 9, 1996. In late August, the Hamburg court found him guilty of incitement to violence and incitement of racial hatred through his distribution of neo-Nazi publications and propaganda materials. Arguing that a crime is committed where its effect is felt (Section 9 of the Criminal Code), Lauck was sentenced to four years in prison.
Sentiment against Lauck as the main source of material for neo-Nazi groups in Germany runs high. The organization "Against Forgetting For Democracy," for example, which is headed by the prominent Social Democrat Hans-Jochen Vogel, issued a statement praising the outcome of the trial as confirmation that such activities violate the legal and democratic order in Germany. The group also appealed to American authorities to intercede or render legal assistance should U.S. citizens commit such violations in Germany in the future.
Hans Schmidt, an American citizen of German birth, was arrested in the Frankfurt/Main airport in August 1995 on charges of incitement to racial hatred and defamation of the memory of the deceased. Prosecutors in the state of Mecklenburg-Vorpommern contend that Schmidt wrote a series of right wing extremist and anti-Semitic texts that he sent to government officials in Bonn and Schwerin (the capitol of Mecklenburg-Vorpommern) as well as to a number of private individuals between December 1993 and April 1995. Schmidt reportedly claims in those texts, for example, that Germany's major political parties are "contaminated by Jews and Free Masons." The 68 year-old Schmidt went on trial in Schwerin on January 4, 1996, but did not appear for the second day of trial on January 11. Authorities suspect him to be in the United States, but cannot ask for extradition since his activities are protected under American law. He is threatened with immediate arrest if he should return to Germany, however.
* Correction by Action Report: We are informed that Lauck used to have a post office box in Lincoln, Nebraska through which he carried out his affairs. But he used to live at Syracuse about 30 miles from Lincoln.