Freedom of expression – essential for free Citizens and a free society

It cannot be stressed too often that Germany as a democratic state does have certain responsibilities towards her citizens, in terms of duty to provide basic sustenance and protection, but also towards her neighbours and the world community. This is, among other aspects, what members of the German government have to confirm under oath. Just to spell out some of the most important duties: domestic and foreign security are included in this list as well as health care, schooling for all children, providing energy, water and food (nutritional sovereignty) and most importantly maintenance of the rule of law as defined by the constitution. The constitution in turn rests upon the human rights, as they were solemnly declared, and natural law. All of this has nothing to do with a societal structure “legitimised” by violent force.
  Freedom of expression in the public sphere, as defined in article 5 of the constitution (Basic Law), is undoubtedly one of the most important privileges of the citizens. In this year’s issue number 1 of this journal, on 17 January 2023, the text of the constitution in its historical development has been described in detail. But since, as stated above, one cannot quote it too often, here is the phrasing once again: “Every person shall have the right freely to express and disseminate his opinions in speech, writing and pictures and to inform himself without hindrance from generally accessible sources.” The Constituent Assembly of 1949 deemed freedom of information so important that they explicitly included it into the Constitution. Linked with freedom of expression in their essence are freedom of assembly (article 8) and freedom of faith and conscience (article 4). It is easy to comprehend that with restrictions of any of these freedoms the essence of democracy, the democracy as such is in danger and a transformation towards totalitarianism is looming or indeed under way already. The constitution therefore paints a picture of citizens willing and able to converse about the particulars of the common good as guaranteed by the democratic state in free responsibility. Should such conversations include statements which transcend the framework of the constitution these were not considered dangerous as such by the constitutional court since democratic convictions are strengthened that way.

The constitutional court appreciates the responsible citizen

In a court ruling of 4 November 2009¹ the constitutional court reaches the following conclusion:

“Opinions aiming to fundamentally change the political system regardless of whether and how far they are implementable in the context of the system of the Basic Law are hence also protected by Article 5.1 of the Basic Law. The Basic Law trusts in the power of the free debate as the most effective weapon against the dissemination of totalitarian, inhumane ideologies.”

It continues:

“Within the free system of the Basic Law, it is primarily civil commitment in the free political debate, as well as state education and upbringing in schools according to Article 7 of the Basic Law which are entrusted with countering the dangers lying therein.”

And finally:

“Nor are citizens legally obliged to personally share the values on which the Constitution is based. The Basic Law is built on the expectation that citizens accept and realise the general values of the Constitution, but does not bring about loyalty to values by force.”

The Image of Man in the German Constitution

In other words, the German constitution trusts in the free competition of ideas, primarily it trusts the commitment of German citizens in free political discourse and moreover it expects that education and instruction in the state’s schooling system will contribute to the maintenance of democracy. Noteworthy though, this contribution of the education and instruction in the state’s schools must be informed by article 7 Basic Law and the respective articles in each regional constitution, but under no circumstances by ideological content of any party or lobbying organisation, which have gained such a strong influence on our legislative and executive branches. To recognise the devastating nature of this, influence a glance at our position in international education ranking polls will suffice, let alone at the big number of college and apprenticeship dropouts. This is the result of both failed education policies and educational science following wrong propositions. The resistance towards responsible education taking place in the school system keeps getting stronger.
  The constitution is the foundation of our democracy. It is the task primarily of committed citizens to breathe life into it in free, unrestricted exchange of opinions in spoken word, in images and in writing. Censorship has no role here. In this sense, every citizen lends meaning to democracy. Freedom of expression is therefore indispensable; nobody is entitled to restrict or even cancel it even in the event of deleterious or “dangerous” utterances.
  Quoting the constitutional court ruling of 2009 again:

“The intention of preventing statements with content that is damaging or dangerous in their conceptual consequence rescinds the principle of freedom of opinion itself and is illegitimate.”

The political “Non-Culture” in Germany

Considering the current state of the political “culture” in Germany we have noticed an ever-increasing tendency towards a process that produces the concept of thought crimes, as unmistakable indicators of politically motivated censorship. These alleged crimes are supposed to be included in the criminal code; some already are. What else could it be, other than indicators of censorship, if criminal prosecution is threatened with demeaning language – even by the state – against so-called lateral thinkers, climate deniers, homophobes, Putin understanders, right extremists, LGBTQ+- critics, xenophobes, patriots, fatherland lovers, delegitimisers and many others? The state-owned media outlets contribute heavily to this state propaganda. Even a legal political party which has never had a court decision labelling it as non-democratic is used by state representatives and the media for stigmatisation, for mobbing and discriminating against non-streamlined opinions. Inevitably this leads to the well-known phenomenon of self-censorship, since this practice of discrimination is a threat to everybody.
  However, behind all these different opinions there are always human beings. Questioning their right to participate in public discourse, mobbing and discriminating against them let alone destroy their livelihoods is against democratic standards but is utterly anti-democratic and totalitarian. This practice is intimidating for people with similar opinions and that is exactly what is intended. With the “Incitement of masses” (§ 130 German Criminal Code) being recycled to include legally ill-defined terms, so that it can be directed against almost any statement now, and § 140 Criminal Code, which prohibits the glorification of a crime, being weaponised against personal opinions now one might argue that we are already in a state of enforced singlemindedness. When the minister for internal affairs tops all of this by threatening her own officers that she might reverse the burden of proof in the criminal code for public officials we have crossed the line towards an Orwellian surveillance state with enforced streamlined thinking. Responsible citizens are to be silenced and outspoken public officials are to be removed from service.

Reversed burden of proof

In the regional state of Berlin this has been official legal practice since 20 June 2022². All public officials there have to actively prove their innocence in case somebody decides to accuse them of racism for-instance. Again: not the accuser needs to prove his point, but the accused. Just try to imagine for a moment what this means for any police officer, teacher or clerk in the city’s administration. A reversal of the burden of proof turning all legal practice upside down, basically rendering all efforts futile for the officials to properly function in their position. Think of the disturbingly inactive police officers who were on duty in Berlin at New Year’s Eve 2022/2023. The reversed burden of proof seemed to have had some consequences in this incident. Was that what was intended?

Divide and conquer by extreme polarisation

One cannot but ask the question: what is all of this supposed to be good for? After managing to compartmentalise public discourse in almost all societal-political aspects into black-and white fractions between whom no communication is even possible because all colours or greyish in-between standpoints have been wiped out of all media products, after making fake news and hatespeach punishable by the Network Enforcement Act (Netzwerkdurchsetzungsgesetz), after all these measures now there seems to be no reliable rule of law any longer for law-abiding citizens. Article 5 Basic Law is all but annihilated. At a point when free expression of opinion is smeared as “delegitimisation” of the political class and the government which the domestic intelligence service (Verfassungsschutz) should deal with, something fundamental has shifted in the concept of the state. Whether expressed opinions are still covered by art. 5 Basic Law should be up to the courts to decide, precisely because freedom of expression is such a valuable right. However, for some time now such decisions have no longer been made in court. Instead, legally non-defined labels such as fake news and hatespeach were invented and then acted upon as if they were court decisions. A formidable arrogation of justice! What should be tried in court is now handled by tech company algorithms which perform this “function”. These companies “clean” the net and thereby assume competencies of the justice system. One can hardly think of anything more dangerous to the German state of law and liberal democracy. Were we not told until recently the worldwide web was an extra-legal sphere where tech companies could not interfere? Nowadays they drive their point about who rules the web home quite bluntly.

The tone gets rough

In the above-mentioned constitutional court decision of 2009, the judges rightly trust the responsible citizens in their practice to uphold democracy. But looking at the political practice of the current German federal government today, the political class seems to be afraid of the sovereign – the responsible citizens. In this case those responsible citizens should voice their concerns with even more determination! The constitution hasn’t changed since 2009.  Should the judges draw different conclusions from its text now, in times of polarisation and “Cancel Culture” as compared with 2009, then they should be advised to look up the proceedings of their former colleagues from 14 years ago. He who restricts or even abolishes free expression of opinion has laid his hand at the democratic state of Germany and threatens to destroy it. The tone gets rough and more totalitarian. And then what?   •

¹ Federal Constitutional Court, Order of the First Senate of 4 November 2009 – 1 BvR 2150/08 – para. (1–110), online at: bverfg.de/e/rs20091104_1bvr215008.html
² To be read in the State Anti-Discrimination Act of the Federal State of Berlin, passed in the Senate on 11 June 2020, promulgated on 20 June 2020 in the Law and Ordinance Gazette for Berlin.