The Scope of Democratic Public Discourse: Defending Democracy, Tolerating Intolerance, and the Problem of Neo-Nazi Demonstrations in Germany

Abstract

The German Federal Constitutional Court and the State Administrative Court of North Rhine-Westphalia repeatedly sparred over Neo-Nazi demonstrations. Bans of Neo-Nazi rallies were routinely overruled by the Federal Constitutional Court. The underlying question is how much freedom of speech can Neo-Nazis in Germany claim today? The criminal code prohibits certain types of speech. According to the state administrative court, the articulation of certain antidemocratic ideas outside the scope of criminally prohibited speech nevertheless expresses ideas contradicting human dignity. This warrants prohibiting demonstrations that would provide a forum for disseminating such ideas. The Federal Constitutional Court, however, finds that the rejection of these ideas by the majority does not justify bans on Neo-Nazi rallies. As long as they fall short of criminally prohibited speech, even objectionable ideas may be publicly articulated. The Federal Constitutional Court has been characterized as the guardian of German democracy. The article illustrates the conflict and examines how the Federal Constitutional Court positioned itself as the relatively more liberal, "speech-permissive" body. Delineating the scope of constitutionally permissible public discourse, it has taken the stance that the open articulation of ideas fosters democracy as long as the ideas do not fall within criminally prohibited categories. Thus it is widening the field of public discourse in awarding a higher degree of faith in democracy. The controversy surrounding the Nazi march at Skokie was referenced repeatedly in the German debate and the article analyzes the comparative references to U.S. First Amendment doctrine and puts them into perspective.

Keywords: free speech, assembly, comparative law

JEL Classification: K14, K19