A GERMAN BRANDENBURG V. OHIO, SORT OF

The Bundesverfassungsgericht has issued a unanimous opinion protecting the speech and assembly rights of right-wing extremists. The decision is not on line yet, but the press release is available here. Here are two key passages in a rough translation:

The basic right of freedom of opinion is a right that also protects minorities; its use cannot be placed under the restriction -- in a general fashion and without reference to a set of limiting factual conditions -- that the expressed opinions shouldn't contradict reigning social or ethical views. . . .

Public order is not an inherently constitutional reason for banning extreme right-wing views because of their content.

Das Grundrecht der Meinungsfreiheit ist ein Recht auch zum Schutz von Minderheiten; seine Ausübung darf nicht allgemein und ohne eine tatbestandliche Eingrenzung, die mit dem Schutz des Grundrechts übereinstimmt, unter den Vorbehalt gestellt werden, dass die geäußerten Meinungsinhalte herrschenden sozialen oder ethischen Auffassungen nicht widersprechen. . . .

Die öffentliche Ordnung ist auch keine verfassungsimmanente Grenze für den Inhalt rechtsextremistischer Meinungsäußerungen.

The case has been heavily litigated already. It involved a right-wing extremist group that originally wanted to march in Bochum in June under the slogan "Stop the constitution of the Synagogue -- 4 million for the people." Local authorities prevented the march on the grounds that the slogan and the march were a threat to public order and also ran afoul of laws that prohibit arousing hate against part of the populace (Volksverhetzung). A court lifted the prohibition on freedom of assembly and freedom of speech grounds (see here), then was overturned by the appeals court (Oberverwaltungsgericht Nordrhein-Westfalen, or OVG NRW, whose decision is outlined in a press release here). The appeals court noted that the demonstration was an attack on a part of the populace and that the references to Nazi Germany were too strong to be ignored. Attempts by the group to get an expedited appeal failed.

The demonstrators then changed their slogan -- "No tax money for building synagogues. For the freedom of expression" -- and applied for a new date for their demonstration. Local authorities claimed that the group was simply trying to get around their earlier prohibition, which they said remained in place for the "new" demonstration. The OVG NRW held its ground.

Then the Bundesverfassungsgericht issued an order allowing the new demonstration to take place on June 26th (see this account of what happened). The opinion released this week is a justification for that order.

The case is a bit complex because there was some division of views at the lower level about whether or not the original demonstration would constitute Volksverhetzung. The Bundesverfassungsgericht's decision rested partly on this division; if there was an expectation of criminal activity, including Volksverhetzung, then there would be grounds for prohibiting the march. So the opinion is not an attack on laws (as such) that American courts would consider a restriction of free expression. It is, however, an attack on the authority of judges to read restrictions on free expression into the constitution.

For more details, see the leftist die tageszeitung here, a detailed account in the Neue Ruhr Zeitung here, and der Tagesspiegel here.