Speech and Tolerance in German Law

Jan Böhmermann’s satiric poem speculating on Turkish President Recep Tayyip Erdogan’s fondness for animals has again uncovered Germany’s complicated relationship with free speech. In this month’s issue, the German Law Journal publishes Christian Hillgruber’s essay on the “Legal Limits of a Permissible Criticism of Religion.” It is a timely contribution. Paragraph 166 of the German Criminal Code criminalizes defamation of religions, religious and ideological associations: “Whosoever publicly or through dissemination of written materials (section 11(3)) defames the religion or ideology of others in a manner that is capable of disturbing the public peace, shall be liable to imprisonment not exceeding three years or a fine.” This provision is similar – in content and values – to Paragraph 103, which is the provision under which Böhmermann can now be criminally charged – after Chancellor Merkel cleared the way for a criminal investigation. The German Basic Law anticipates limits on the freedom of speech – providing that the right to free expression opinions, to inform oneself, and to a free-press “shall find their limits in the provisions of general laws, in provisions for the protection of young persons, and in the right to personal honor.” The search for a balance between honor and liberty has led to some of the Federal Constitutional Court’s most prominent decisions.

The German Law Journal has often covered these fundamental questions. Winfried Brugger published a magesterial survey of “The Treatment of Hate Speech in German Constitutional Law” in 2003. Some years later, animated by Professor Weiler’s experience in the French courts, the Journal published a mini-symposium on “critical book reviews and academic freedom” featuring contributions from Ignacio de la Rasilla del Moral and Kate Sutherland.