Freedom of Speech: USA vs Germany and Europe
| DOI | 10.1177/092405190001800203 |
| Published date | 01 June 2000 |
| Date | 01 June 2000 |
| Subject Matter | Article |
Freedom
of
Speech: USA vs Germany and Europe
Aernout Nieuwenhuis'
Abstract
Racist utterances are treated differently in American law on the one hand and in German
or European law on the other hand. This difference in approach leads to problems when
it comes to assessing restrictions on free speech that are intended to combat discrimi-
nation. These different approaches also tend to clash in cyberspace, the virtual world
without borders. This article discusses in depth the difference between the American and
the German or European approach. It analyses the relationship between free speech and
democracy and examines the importance
of
the grounds
for
restrictions which may apply
in the case
of
a ban on racist utterances.
Introduction
The right to freedom
of
speech is a fundamental right. This right is accorded extra
significance by the link between free speech and democracy. Nonetheless, the importance
attached to this fundamental right is not the same in every democracy. The approach in
the USA contrasts with the German and European approach. This is most clearly shown
by the treatment
of
racist utterances. In many European countries there is extensive
legislation against racist utterances. Examples
of
banned acts are inciting hatred, insulting
particular groups and denying the Holocaust. There are various arguments for such
provisions. First
of
all, propaganda could create a racist majority view. Second, racist
expressions could possibly lead in the short or long term to violence and discrimination.
Third, they cause hurt feelings and resentment. And, fourth, such expressions can be
regarded as a serious form
of
defamation. The provisions introduced in the European
countries are not, according to the law
of
the countries concerned, at odds with the
fundamental right
of
freedom
of
expression. By contrast, very few
of
these provisions
would stand the test
of
the First Amendment to the US Constitution. This is because in
the USA the Supreme Court has drawn very strict limits for restrictions on freedom
of
speech.
The existence
of
two different approaches to freedom
of
speech gives rise to problems.
H~man
rights groups that operate internationally, sometimes have to assess restrictions on
freedom
of
speech that have been introduced to counter discrimination. The question then
is how the right to non-discrimination relates to the right to freedom
of
speech. 1The same
differences
of
opinion are also evident to some extent in the history
of
the establishment
of
the International Convention on the Elimination
of
All Forms
of
Racial Discrimination
and the reservation made by the USA when ratifying it. Problems are also occurring in the
creation
of
a virtual world without borders. In some European countries there is great
conccrn about Internet sites on which substantial amounts
of
racist material can be found
Lecturer in Constitutional Law, University of Amsterdam.
See, for example, M.H. Wiegandt, 'The Pitfalls of International Human Rights Monitoring: Some Critical
Remarks on the Xenophobia in Germany', in: Human Rights Quarterly, Vol. 18, 1996, pp. 833-842; M.
Fullerton, 'Human Rights Monitoring in Germany; a Rejoinder', Human Rights Quarterly, Vol. 18, 1996,
pp. 843-847.
Netherlands Quarterly
of
Human Rights, Vol. 18/2, 195-214, 2000.
©Netherlands Institute
of
Human Rights
(81M).
Printed in the Netherlands. 195
NQHR
2/2000
which would be prohibited if it were to be published in the countries concerned. Such
concern is quickly seen as paternalism in the USA. Individuals must themselves decide
whether or not they wish to read something.
The aim
of
this article is to explain the most important, partially interrelated aspects
of
the two approaches. To this end I shall compare the right to freedom
of
speech in the
United States with the same right in Germany and with the right laid down in Article 10
of
the European Convention for the Protection
of
Human Rights and Fundamental
racist utterances, the courts in the USA have come to decisions and formulated theories
which are diametrically opposed to those in Germany. The Supreme Court and the
Bundesverfassungsgericht (Federal Constitutional Court) have elaborated this position in
a series
of
judgements that determine how the freedom
of
speech enshrined in the First
Amendment' respectively Article 5 Grundgesetz' (GG, German Constitution) should be
interpreted. It could,
of
course, be argued that Germany is in a special position in Europe
owing to its
'war
record'. But this is true only to a very limited extent. This is evident
first from the fact that most European countries have criminal provisions against racist
expressions and that these prohibitions are not deemed contrary to the fundamental right.
And, second, it is also apparent from the nature
of
the 'European freedom
of
expression'
This 'European fundamental right' makes its influence felt in many different ways.
First
of
all, it has direct effect in the law
of
some Contracting States as a self-executing
provision. This means that national courts can test restrictions on the freedom
of
expression by reference to Article 10 ECHR. Countries which do not recognise a
relationship
of
this kind between national and international law, have often incorporated
the provisions
of
the Convention into national law. Second, individuals from Contracting
States may apply to the European Court
of
Human Rights in Strasbourg when they have
Constitution
of
the United States Amendment I: 'Congress shall make no law ( ...) abridging the freedom of
speech, or
of
the press ... '
Art. 5 GG:
'(I)
Jeder hat das Recht, seine Meinung in Wort, Schrift und Bild frei zu iiul3ernund zu verbreiten und sich
aus allgemein zugiinglichen Quellen ungehindert zu unterrichten. Die Pressefreiheit und die Freiheit der
Berichterstattung durch Rundfunk und Film werden gewiihrleistet. Eine Zensur findet nicht statt.
(2) Diese Rechte finden ihre Schranken in den Vorschriften der allgemeinen Gesetze, den gesetzlichen
Bestirnrnungen zum Schutze der Jugend und in dem Recht der personlichen Ehre .
.(3) .. ,' .
[(I) Everyone has the right to freely express and disseminate his opinions in speech, writing and pictures and
to freely inform himself from generally accessible sources. Freedom
of
the press and freedom
of
reporting
by means
of
broadcasts and films are guaranteed. There will be no censorship.
(2) These rights are subject to limitations in the provisions of general statutes, in statutary provisions for the
protection
of
the youth, and in the right to personal honour.
(3) (...)]
Art. 10 ECHR:
'(I)
Everyone has the right to freedom
of
expression. This right shall include freedom to hold opinions and
to receive and impart information and ideas without interference by public authority and regardless
of
frontiers. (...)
(2) The exercise
of
these freedoms, since it carries with it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic
society, in the interest
of
national security, territorial integrity or public safety, for the prevention
of
disorder
or crime, for the protection
of
health or morals, for the protection
of
the reputation or rights
of
others, for
preventing the disclosure of information received in confidence, or for maintaining the authority and
impartialijy
of
the judiciary.'
196
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