Who is violating whom

Jan Böhmermann, for those who don’t know him, is the name of a well-known and widely admired comedian in Germany. Six years ago, in his show on national TV, he recited a “poem” full of the most egregious lies and insults against the Turkish President Erdogan, allegedly to teach the autocrat a lesson about how we Germans are protecting freedom of expression under our Grundgesetz. The reason he did this was the fact that the Turkish government had summoned the German ambassador because of a rather lame joke another TV comedy show had made about Erdogan. Look, Böhmermann purported to say: This is what forbidden expression looks like in Germany! Piling expletive-laden sexist racist infamy, kicking your human dignity with my feet: Schmähkritik! As opposed to the expression of our admittedly rather low opinion of you which is protected under Article 5 of the Constitution as a matter of course.

Erdogan filed for injunctive relief and won for the most part, and this week this by-now classic case has come to a final conclusion – which, however, looks like an anti-climax: Seldom was a high-profile complaint disposed of as curtly by the Federal Constitutional Court as the unhappy comedian’s. Dismissed due to lack of likelihood of success, further substantiation deemed unnecessary, signed, stamped, and delivered.

This has caused quite some speculation: What did the Court want to tell us with this? Did it want to avoid having to take a position in this diplomatically sensitive case? Was it perhaps unable to agree internally on the correct reasoning? The motives of the three chamber members lie in the darkness of deliberative secrecy, where they belong. Still, it seems to me, one can surmise a message in the brevity of this decision.

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The case of Erdogan v. Böhmermann appears like a classic example to teach law students the inner workings of German constitutional law: Freedom of expression and protection of personal privacy, satire and artistic freedom, balancing of conflicting fundamental rights and inviolability of human dignity, democratic criticism of power and the right to be left alone: it’s all there. As is well known, we in the Federal Republic of Germany, unlike the Turks, the poor souls, have been setting up our constitutional fundamental rights as the Werteordnung (order of values) of the society at large for 63 years now, and Böhmermann’s stunt was allegedly intended to teach the despot of the Bosporus some sort of a lesson in this respect. As an uninitiated TV viewer of this satirical tutorial, one could easily fall prey to the misunderstanding that the great thing about this order of values is that it neatly orders the conflict situation into two areas: here the forbidden Schmähkritik, there the permitted freedom of expression. The opposite is true. The great thing about it is not that it puts everything to order, but that it keeps disorder possible.

Freedom of expression and the right of personal privacy are not two abstract values whose relationship of superiority or subordination to each other can be clarified on a conceptual level, but rather two colliding rights that bump hard against each other and generate constant conflict: You dispraising me hurts me, me silencing you hurts you. Both is true at the same time, and who is violating whom is, at the outset, an open question. The answer can’t be looked up in a book, but must quite literally be found as the result of a process. It has to be tried before a court that hears independently and impartially what both sides have to say for their justification.

That’s what happened in the case of Erdogan v. Böhmermann, and even if some of what the Hamburg Higher Regional Court says on the subject of artistic freedom makes my hackles curl, it seems to me that the so-called “balancing” between freedom of expression and privacy rights is essentially okay: What Böhmermann can justify remains permitted. What he cannot, is forbidden.

But shouldn’t the “overall educational context” of Böhmermann’s defamatory poem have tipped the scales in favor of freedom of expression? Many found this abstract legal question interesting and would have liked to see it answered in Karlsruhe. That did not happen. Instead, the same chamber sent another decision to Hamburg today, also about a conflict between freedom of expression and personal privacy and about the question of what one may and may not say about others in public. The 7th Senate of the Hamburg Higher Regional Court – the famous Press Senate that also ruled on the Böhmermann case – had issued a temporary injunction and provisionally banned the expression of an opinion without first hearing the person expressing it. Until the injunction was served, the latter had no idea that proceedings were being conducted against him at all.

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Der Lehrstuhl für Öffentliches Recht (Prof. Dr. Kluckert) der Universität Wuppertal sucht einen Wissenschaftlichen Mitarbeiter (m/w/d) mit überdurchschnittlichem Abschluss (Prädikat) und guten Kenntnissen im Öffentlichen Recht (insb. Staats- und Verwaltungsrecht, Öffentliches Wirtschaftsrecht) sowie mit Interesse und Befähigung zu wissenschaftlichem Arbeiten.

Die Bewerbungsfrist endet am 21.02.22. Die ausführliche Stellenausschreibung findet sich hier.

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In the opinion of the FCC chamber, this is no way to deal with the right to a fair trial – especially not when, as here, the lower court had provided the other party with helpful advice on the prospects of success of certain formulations of the application for an injunction. “One-sided secret proceedings over a period of several weeks, in which the court and the applicant exchange views on questions of law without involving the defendant in any way, are incompatible with the procedural principles of the Basic Law.”

That alone would be astonishing enough – but apparently there is a method to such things in Hamburg: According to the FCC chamber, this is a “repeated violation” of the law of equality of arms in interim injunctions by the Press Senate of the Hamburg Higher Regional Court, which is why the Karlsruhe chamber finds it necessary to point out to the Hamburg judges the “legally binding effect of the decisions of the Federal Constitutional Court” and to announce that in further cases of this kind, the particular interest of the complainant in having the unconstitutionality established, a precondition of the admissibility of the constitutional complaint, “will always be regarded as given.”

It is the job of the Hamburg Higher Regional Court to allow for the processing of the conflict between freedom of opinion and personal privacy. It is the job of the FCC to make sure that the Hamburg Court is doing this job instead of setting itself up as the avenger of the offended and dishonored and thus compromising itself as a place where offended and offenders can process their conflicts. It is not the job of the FCC to check whether the case of the clever Jan Böhmermann could have been solved even more cleverly than the Hamburg Court did. All in all, I would say about this week’s output of the FCC chamber: well done.

This week on Verfassungsblog

On the latest COVID news: The announcement by Bavarian Prime Minister Markus Söder that his government will not enforce the facility-based vaccination requirement passed by federal law for the time being has caused fierce outrage. Breach of the constitution? Endangering the rule of law? None of that, argues JOSEF FRANZ LINDNER.

Since January 2022, anyone who has not been vaccinated but has recovered keeps this status only for three instead of six months. Politically, this was hotly disputed, but legally? The Osnabrück Administrative Court has declared this regulation unconstitutional, among other things because of the way the regulation refers to the website of the Robert Koch Institute. There are certainly problems, explains JOHANNES GALLON, but the way the Osnabrück court has been handling this case won’t do at all.

Does the Saxon Ministry of Justice have to allow the right-wing extremist ex-MP Jens Maier to return to the judicial service? The debate was initially initiated by Andreas Fischer-Lescano, who was backed Klaus Ferdinand Gärditz. The matter has become a major media topic (this week here, here and here), and KLAUS FERDINAND GÄRDITZ rounds off his legal argumentation.

The Poland v. EU conflict faces a fateful week: next Wednesday, the ECJ will deliver its ruling on the rule of law mechanism, with tremendous stakes for the constitutional setup of the Union as a whole. Our podcast on this conflict is finally almost finished: The sixth and last part – topic: Polexit – is about to be completed and with it the biggest project we have tackled so far.

After the “Constitutional Tribunal” and the Disciplinary Chamber of the Supreme Court, the European Court of Human Rights has now also denied the Civil Chamber the quality of a court established by law, insofar as judges who were brought into office by the captured National Council of the Judiciary participate in it. MARCIN SZWED explains what this means for the Polish judiciary and authorities, and MATHIEU LELOUP examines the question of whether, against this background, plaintiffs from Poland can in future still be required to exhaust the legal process in Poland before turning to the Strasbourg Court.

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Stellenausschreibung Wissenschaftliche Mitarbeit

An der Professur für öffentliches Recht (Prof. Dr. Johanna Wolff) sind zwei Stellen für wissenschaftliche Mitarbeiter*innen zu besetzen. Wir freuen uns auf Bewerber*innen mit Interesse am öffentlichen Wirtschaftsrecht und/oder Finanz- und Steuerrecht, die Freude an Lehre und Forschung mitbringen. Bewerbungsschluss ist der 25. Februar 2022.

Nähere Informationen finden sich hier.

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In the UK, the Supreme Court can’t see any problem with the legislature raising the fees for acquiring citizenship so high that access to it effectively depends on whether one can afford it or not. TIMOTHY JACOB-OWENS regrets that the Court has not been more courageous in recognizing citizenship as a fundamental status, and considers it conceivable that a bench not composed entirely of white persons would have ruled differently.

In Israel, the police use spy software against their own citizens. For TAMAR HOSTOVSKY BRANDES, this shows that existing Israeli data protection laws are inadequate. But the ease with which these surveillance technologies are used also speaks volumes about the militarization of Israeli society, he said.

In parallel with the Beijing Olympics, our latest blog symposium on the regulation of expression by sports federations is picking up steam. JÖRG KRIEGER outlines the history of the Olympic movement’s regulation of free speech. MARK JAMES analyzes the application of Rule 50 of the Olympic Charter, which prohibits all political expression on Olympic grounds. And FARAZ SHAHLAEI examines how this ban relates to international human rights protection and freedom of expression.

For our current blog symposium on 20 years of 9/ 11, which looks at the impact of the attacks on freedom of the press, information, and expression, this week CEM TECIMER writes on Turkey and JILLIAN C. YORK on content regulation on the Internet.

Next week, I will have to postpone this editorial for a day, so you will find it in your in-box Saturday night instead of Friday.

Meanwhile, all the best to you, please don’t forget to support us on Steady, and stay safe.

Max Steinbeis