Comment by yorwba
14 days ago
> The German constitution guarantees Freedom of Speech?
Article 5 of the Basic Law guarantees freedom of expression, freedom of the press and freedom of reporting by broadcast and film. It immediately restricts those freedoms with "limits in the provisions of general laws, in provisions for the protection of young persons and in the right to personal honour." https://www.gesetze-im-internet.de/englisch_gg/englisch_gg.h...
Many kinds of speech aren't covered by the enumerated freedoms in the first place, and "protection of young persons" is the basis for age-verification requirements.
Though given that the US constitution claims to guarantee freedom of speech while many things that people would ordinarily consider speech remain illegal, maybe "freedom of expression within limits" and "freedom of speech" is a distinction without difference in practice. But I think the former approach is more honest.
I am not a lawyer, but, including as in the US case the interpretations adopted by the constitutional courts, the "freedom of expression in spoken and written word and image" is considered to not enumerate a limited list of expressions but cover all forms of expression.
It is true that paragraph 2 allows limiting expression, but the point here is that generally it is not permissible to limit speech based on its content, but only due to other "general laws" that aim to do non-speech related things (including upholding other constitutional rights).
In the case of protection of honor, I find interesting the interpretation of the constitutional court that this does not limit speech if there are alternative non-demeaning ways to express your opinion. This to me seems the strongest divergence to the US concept of Freedom of Speech. If you can express the same content in a less demeaning way, the courts can force you to do so. Still: It is considered crucial by the constitutional court that general laws do not limit the freedom to criticize.
Overall the court has noted that the limits of freedom of expression need to be as small as possible, and that there always needs to be a balance of other (constitutional) rights being protected when there is such a limit placed. Laws can not arbitrarily restrict speech, and the special importance of the constitutional right to freedom of speech needs to be considered.
Paragraph 32: https://www.bundesverfassungsgericht.de/SharedDocs/Entscheid...
The protections around speech are constructed differently than in the US, but overall seem to arrive at roughly similar results. It is also important to note that protection of speech has varied quite a lot over the 20th century in the US. From 1919 for 50 years, Supreme Court precedent was that advocating against the draft was illegal:
https://en.wikipedia.org/wiki/Schenck_v._United_States
"The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. ... The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree."
In this case the clear and present danger is that of "hindering the governments war effort". This was the status of Free Speech in the US at the time the German constitution was written.
So yeah, there are important differences, a ton of nuance, many similarities between German and US cases, etc... Which is why I can't really consider anything that boils down to "Well the US has free speech, unlike EU/Germany/...", without even hinting at the freedom of speech trade-offs that are made in both systems, as an argument made in good faith.