Felix ElsnerFelix Elsner

Grundgesetz – Article 5: Freedom of expression

Article 5 concerns freedom of expression.

It stipulates:

  1. Jeder hat das Recht, seine Meinung in Wort, Schrift und Bild frei zu äußern und zu verbreiten und sich aus allgemein zugänglichen Quellen ungehindert zu unterrichten. Die Pressefreiheit und die Freiheit der Berichterstattung durch Rundfunk und Film werden gewährleistet. Eine Zensur findet nicht statt.
  2. Diese Rechte finden ihre Schranken in den Vorschriften der allgemeinen Gesetze, den gesetzlichen Bestimmungen zum Schutze der Jugend und in dem Recht der persönlichen Ehre.
  3. Kunst und Wissenschaft, Forschung und Lehre sind frei. Die Freiheit der Lehre entbindet nicht von der Treue zur Verfassung.

Let us dissect and translate this article by paragraph.

Paragraph 1 states:

Everyone has the right to express and disseminate his opinion in speech, writing and picture, as well as to educate himself from publicly available sources without hindrance. The freedom of the press and the freedom of reporting through radio and film is being guaranteed. A censorship does not take place.

Having an opinion means assessing a fact, it is the result of a thought process. Compound statements of opinion and factual assertions are protected as well, even if the assertion may be proven false, because the compound statement may be aiding in the formation of an opinion.

In addition to individuals, this paragraph also protects publishers and editors. Unimpaired access to information is ensured, which is interesting: Internet access already enjoys status as a basic right, as declared by the Bundesgerichtshof in 2013. After all, information on the internet still consists of word, picture and sound.

Forcing an opinion on someone is not protected by this article. Just as there exists a freedom to disseminate an opinion, there exists the right to choose to ignore it.

Paragraph 2 states:

These rights find their barriers in the provisions of the general laws and regulations, statutory provisions for the protection of the youth and the right of personal honour.

Very important to note, Article 5 is not a magic protection spell to absolve one from a lack of decency or responsibility. It leaves room for strong provisions in the penal code.

Germany has comparatively weak libel laws and provides strong backing for satire and criticism. The Landesmedienanstalten however are zealous in their quests to protect German youth from harm, including depictions of violence and indecency. Featuring insignia of the Third Reich is only allowed in a non-glorifying context.

Freedom of speech in the Federal Republic of Germany is effectively governed by several laws and bodies.

  • Article 5 makes freedom of opinion, of the press and of reporting, and freedom from censorship constitutional principles.
  • Protection of the free and democratic basic order mandates the prohibition of the following: Volksverhetzung, Glorification of National Socialism, use of symbols of the reign of National Socialism, and denial of the Shoah.
  • Article 2 ensures personal rights are strongly protected. Slander and defamation encroach upon these rights. The right to privacy is strongly protected. Personal data may be broadcast or sold only with strong reservations.
  • Article 3 ensures freedom from discrimination, advocating a position irreconcilable with that principle is not protected.
  • Security laws forbid treason.
  • Protection of the youth is governed by the Youth Protection Act and the Jugendmedien-Staatsvertrag.
  • Decency and religious freedom laws. Germany has been a republic for some time now, that does not stop us from having Lèse majesté laws, just for foreign rulers. One must be cautious of hurt feelings, especially if the subject is well connected.
  • Endorsement of criminal actions is forbidden per the penal code.
  • The copyright to Mein Kampf was held by the Free State of Bavaria until 2016. Owing to numerous trade deals, there is strong copyright protection in Germany.

All these factors mean that while Germany enjoys a vibrant and free press landscape, certain items are off limits:
One could, for example, call Donald Rumsfeld a lizard in jest, but calling him a lizard based on the claim that all persons of U.S. American heritage are lizards out to consume human flesh would be indictable, as that would constitute Volksverhetzung per Chapter 7 § 130 of the penal code.

Denying something that happened in the antique is permissible, as sources are not entirely verifiable. The events of the Third Reich however are not to be disputed, as the constitution hinges on preventing them from ever befalling the world again. We’ll get to how this is translated into the education system later.

Paragraph 3 states:

Art and science, research and teaching are free. The freedom of academic teaching does not release one from loyalty to the constitution.

Loyalty to the constitution does not mean a scientific complaint against the constitution may not be leveled. Teaching of course is bound by curriculum, which is set by the federal states.

In conclusion, this article, often misinterpreted, ensures public life and communication may develop in peace and bloom. Not only distribution of, but also access to information is protected.

Addendum

Normally, the biggest issue with freedom of speech are lies told about someone. Yet in Germany it is not permissible to lie about something that happened. The state has a monopoly on what constitutes a falsehood, on what is true and what is not.

Adding to that, the state of independence of the regulatory bodies from the government is somewhat murky; the ranks of the Rundfunkrat are littered with party functionaries.

In practice only useless knuckleheads dispute events of the past that are provably true. The German state provides a sense of calm for the German people as they do not have to tolerate blatant and malicious lies and can prosecute neo-fascist Pied Pipers with solid legal standing.

But also instills a sense of unease. It just does not feel right. Having to fight for temporary injunctions against virulent degenerates as is practice in other countries, as laborious as it is, is preferable to codifying state power over the truth into law. The current state of affairs keeps people honest, at a cost, with mighty force, not persuasion.

This article is part 6 of the “Grundgesetz” series.