Restriction of freedom of expression: Former constitutional judges warn

Former Federal Constitutional judge Peter Michael Huber criticized the black and red projects for a stronger media supervision. “Hate and agitation are not legally clear terms, but more at the enforcement gate for the enforcement of ideological ideas, especially from the left-wing green milieu,” he told that star. “This constricts the corridor of the saying more and more.” The delimitation to criminal law.

Huber referred to the ongoing coalition talks of the Union and SPD. The working group responsible for “culture and media” has agreed to proceed “on the basis of clear legal requirements against information manipulation as well as hatred and agitation”. “We will enforce that online platforms meet your obligations in terms of transparency and participation compared to supervision, as well as examine a stricter liability for content,” says the paper that the paper says star is present.

In this context, the negotiators stated that the conscious spread of false factual claims is not covered by freedom of expression. ” Critics see a potential “lying ban” in the wording. Huber also criticizes the future coalition’s approach. It is true that a conscious, intentional spread of false facts does not fall under the protection of Article 5 of the Basic Law, he said. “The question is, however, that the truth content of a statement is often unclear and how the intent can be determined.”

The ex-constitution judge warned of a further restriction of freedom of expression. “Something has started to slide that threatens to raise freedom of expression for our democracy,” he said. “It is disappointing that the new federal government wants to continue this.”

According to Huber, the Basic Law limits freedom of expression by general laws, for example in criminal law and personal protection. However, these limits would have to be interpreted “very closely” within the meaning of the Basic Law: “In the framework that is stuck in this way, everyone should actually be able to say what they want.”

Unfortunately, an additional barrier has been built in recent years, the lawyer complained. “If statements are qualified as hatred and agitation and the Federal Network Agency displayed, they must be deleted by platforms on the Internet.” This postponed the border of what is said, as in the case of the pensioner, whose house was searched because he had described the Green Economic Minister Robert Habeck as “weak head”.

According to Huber’s observation, German development takes place in a European context. “Since the turn of the millennium we have been on a slippery slope in Europe, a slippery slope,” he said. He referred to the EU’s fundamental right -wing agency, but also the Digital Services Act and the European Media Freedom Act.

“Fundamental rights are no longer understood as an unspeakable freedom of the people who need to protect against the state, but as a justification for state action,” he said. The EU sees the fundamental right of freedom of expression “as a competence title” in order to “secure a corridor of reasonable statements” against what authorities classify as fake news, hatred and agitation. “Anyone who violates this runs the risk of being stigmatized and sanctioned.”

From Huber’s point of view, this development is fatal. “The business basis of a free and open society is that the state does not capture the citizens and that they can speak in the head without scissors,” he said. “This also includes that you have to endure the opinion of idiots.”

Huber is a law professor at the Ludwig Maximilians University in Munich and from 2010 to 2023 was a member of the Second Senate of the Federal Constitutional Court. Before that, he briefly served as Minister of the Interior in Thuringia.

Article 5 of the Basic Law states: “Everyone has the right to freely express and distribute their opinion in word, writing and image and to inform themselves freely from generally accessible sources. Freedom of the press and the freedom of reporting through radio and film are guaranteed. There is no censorship.”