Freedom of Speech Germany Struggles To Define Limits of What Can Be Said

A debate over the limits of free speech is exploding in Germany, with the left and the right seeking to outdo each other. The political debate has grown intense in this polarized country, but it's also more vital than ever. By DER SPIEGEL Staff

Markus Scholz / DPA

Someone must have made it all up, it was just too perfect to have really happened. At some point, the curtain will be pulled back on the person who wrote this comedy.

It was Wednesday, Oct. 30, the day before Halloween, the day of the year on which evil spirits are driven away, and the sun was shining. The physics department at the University of Hamburg lies far away from the main campus, in the shadow of the city's convention center and next to the municipal jail. The Karoviertel and the Schanze, neighborhoods crawling with the city's left-wing resistance, are both located nearby. Two years ago, in fact, the edge of the restricted area during the G-20 summit ran somewhere through here and the police are familiar with every nook and cranny. This time, though, it wasn't about protecting the world's most powerful leaders -- it was about making it possible for a former politician named Bernd Lucke to finally hold a lecture with the rather benign title of "Macroeconomics II."

The lecture had been cancelled twice in the previous two weeks due to pressure from students and activists with the local left-wing Antifa antifascist movement. The first time, they shouted at Lucke, decrying him as a "Nazi pig." The second, a few of them raided the lecture hall, which had little security.

Students have prevented lectures by unpopular professors time and again in decades past, and the development never really seemed all that ominous in retrospect. Young people have always had something of a human right to protest and cross lines -- at times in more prudent ways than others. And perhaps a little more composure would have been appropriate this time around.

But where is that composure supposed to come from? Especially in a society that has grown a little emotionally overheated of late? In addition to the two lectures by Lucke that were forestalled, a book reading by former German Interior Minister Thomas de Maizière in the city of Göttingen was also impeded. Meanwhile, an event in which Christian Lindner, the head of the business-friendly Free Democratic Party (FDP), was to speak to his party's university arm also had to be cancelled. This confluence of events, along with some rather unfortunate statements made by Hamburg politicians, even prompted the Bundestag, Germany's federal parliament, to hold a very lively special session on "Defending the Freedom of Expression in Germany."

Two-Thirds of Germans Afraid to Say What They Think?

There has been a flood of articles in the media on the issue as well, and they often make reference to the same poll indicating that two-thirds of the German people are afraid to say what they think. The phrase "the limits of what can be said" is heard frequently these days, as is "PC dictatorship." At times, the discussion makes it sound almost as if National Socialism and Stalinism have joined forces to abolish fundamental rights. But what the entire debate suggests more than anything else is that freedom of expression is actually alive and well in Germany. And rather exhausting.

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In part because the debate has created a paradoxical situation in which the freedom of expression has had to be enforced in a very real way -- not in the relative anonymity of Twitter, but in a lecture hall in Hamburg with real students inside and real police officers out front -- without that freedom ever seriously being threatened. Last Wednesday, Lucke was to give his lecture, come what may. Lucke is an economics professor at the University of Hamburg, but he is also the founder of the right-wing populist Alternative for Germany (AfD) party, although he left the party following a power struggle that resulted in its shift to more extremist positions. In the time since his departure, he has largely fallen out of the public spotlight.

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The night before Lucke's lecture, the university issued a press release that did little to conceal how tense the situation had become. It stated that the event was to take place at the planned time after Professor Lucke rejected a proposal by the university for him to hold the lecture online in an effort to de-escalate the situation. For that reason, the statement read, the university took the step of requesting that law enforcement officers be on hand to provide security at the lecture. They seemed to be preparing for the worst: The university said its psychotherapeutic outpatient clinic would be available for drop-in treatment of any post-traumatic stress disorder that might be experienced by students or staff as a result of the lecture.

And what ultimately happened? Nothing. Around 300 students turned up for their compulsory lecture last Wednesday at 12 p.m. Hundreds of police stood around, as did 30 to 40 journalists and about the same number of protestors or curious bystanders -- it was hard to tell a difference between the two. Lucke himself entered unnoticed through the side entrance to the lecture hall, named after the German physicist Otto Stern, who emigrated from Germany in 1933 to flee the Nazis and was awarded the Nobel Prize in 1943. One student tweeted that Lucke cracked a joke during his lecture that the choice of the hall next to the jail would be quite appropriate if there were a protest.

When Efforts To Silence Fail

So, that's the good news: Freedom of expression is still alive and well in Germany, and fundamental rights are secure and are even protected against the smallest of attacks. The other news is that Bernd Lucke emerged as the primary beneficiary. It would be easy enough to think that Lucke himself had been the brilliant mastermind behind this German comedy, but that would be giving him too much credit. Lucke's political rebirth in recent days likely came as a surprise to him. In fact, he should be thanking the Antifa protesters and students for all the attention.

Perhaps the debate on freedom of expression taking place in Germany right now really has more to do with ideas like the climate our opinions create, our ability to control our opinions and the way we speak to each other. About the way in which we wage our battles and the political consequences they have. Sometimes, even the best of intentions can have the opposite of their intended affect. In this case, instead of silencing Lucke, his opponents inadvertently made him a lot louder.

Politics is always a question of interpreting reality. The idea behind a democratic public is that of a competition of ideas through which one interpretation wins out. It is the struggle to determine which interpretation is relevant and which is not.

A Madhouse of Opinions and Insults

The debate over freedom of expression itself, its scope and its effectiveness -- from the political level right down to the emotional worlds of normal people -- is highly indicative of the state of our public today. It shows that many people feel insecure and are thus politically unpredictable. It shows the power of social networks and online platforms, but also the havoc this digital era is wreaking within the public sphere. Our public, it appears, has become a madhouse of opinions and insults, worldviews and impositions.

Something tangible has changed. Right-wing populists are now leading countries in almost all regions of the world and they have a penchant for bending reality to fit their needs. Donald Trump and Boris Johnson are the best-known examples, but the situation isn't much different in Poland, Brazil or the Philippines. And in Germany, too, the growth of the AfD has had a massive influence on the public debate.

A number of polls and studies have been released showing how the climate of opinion has shifted and what the ultimate consequences may be. A survey taken by the respected Allensbach Institute for Public Opinion Research in May found that two-thirds of Germans are convinced that you have to be careful these days about the kinds of subjects you discuss and how you discuss them, particularly when it comes to refugees, Islam, the Nazi era, Jews, right-wing extremism and the AfD. At the same time, 76 percent of respondents said AfD co-head Alexander Gauland's 2018 statement that Hitler and the Nazis were only "a speck of bird poop in more than 1,000 years of successful German history" was unacceptable. But more than half also said "it gets on their nerves, that more and more people are telling you what you can and cannot say and how to behave."

The Shell Study, a recently published report on the beliefs and mindsets of more than 2,500 young people between the ages of 12 and 25, produced similar findings. Two-thirds of respondents said they believed that you can't say anything bad about foreigners in Germany without being immediately called a racist. More than half said they believed, "the government is hiding the truth from the people." And at least one-third still fears that society is being "infiltrated by Islam."

A Dictate on Opinion?

These aren't random findings. They match up closely with those of other recent polls. When pollster Infratest Dimap questioned people in the run-up to recent elections in the eastern states of Saxony and Brandenburg, 64 percent of the respondents in Brandenburg and 69 percent of those in Saxony agreed with the statement that one is "ostracized today on certain subjects if a person speaks their mind." According to the "Center Study" by the Friedrich-Ebert-Stiftung, a think tank affiliated with the center-left Social Democratic Party, 55 percent of those surveyed complained that there is an "opinion dictatorship" in Germany. And in a survey conducted by the PEN Centre among authors and journalists, 75 percent expressed concern about the situation regarding freedom of expression in Germany.

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In the 1970s, the "spiral of silence" theory in political science described a phenomenon in which many conservative people didn't dare to express their views openly because they diverged too strongly from the opinions propagated by the mass media. But today, it's the vociferously indignant and social media mudslingers who are making some people feel that they aren't free to say what they wish. Today, the "spiral of silence" is known as the "chilling effect."

"Every person shall have the right freely to express and disseminate his opinions in speech, writing and pictures and to inform himself without hindrance from generally accessible sources. Freedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed. There shall be no censorship. " -- Article 5, Paragraph 1 of the Basic Law, Germany's constitution

Those three sentences, those 50 words, were all it took in 1949 to establish one of Germany's most important fundamental rights, the freedom of expression.

A New Era of Freedom of Expression

Seven decades later, historian Timothy Garton Ash, who teaches at Oxford and Stanford, needed 700 pages to analyze all the problems that freedom of expression encounters in a globalized and highly connected world. Seven years after its publication, his book "Free Speech" has become a primary source on the subject.

At no other time have people had the ability to express their opinions as freely as they can today and to spread them as far. This state of affairs is the product of the internet, of global migration and the opening of Western societies, in which a growing number of minorities are making their voices heard. Garton Ash describes it as a new era of freedom of expression.

At the same time, however, the risks posed by this freedom of expression are more evident than ever before, including "sewage-tides of abuse," as he writes in his book.

So, how free should speech be? And what conventions should all participants in a discourse be required to adhere to? This dispute is often hard fought -- and not just in Germany. The world, says Garton Ash, has not become a global village, as it was once called in the 1960s, but a global metropolis, a "virtual cosmopolis."

This is because villages are small, quite homogeneous places. In big cities, on the other hand, a lot of very different people are brought together. They seldom or never encounter each other, and when they do, it's usually only for a fleeting moment. And they remain strangers. One of Garton Ash's theses in the book is that this makes freedom of expression all the more important. Freedom of expression makes it easier to live with diversity and it also schools us in the art of tolerance. "Only with freedom of expression can I understand what it is to be you," he writes.

Civil, Robust, Well-Informed Criticism Needed

Garton Ash, a liberal Anglo-Saxon, lists 10 principles that are needed to guarantee the right to freedom of expression in the future and to protect the dignity of people with dissenting opinions. One principle is: "We allow no taboos against and seize every chance for the spread of knowledge." Garton Ash opposes the boycott of politically unpopular professors or guest speakers, as seen recently in the United States and Germany. "It is precisely in universities that the widest possible range of influential and controversial views should be given a platform," he argues in the book, "and then met with civil, robust, well-informed criticism." Ash does consider student protests against speakers to be legitimate, though, so long as the speakers are still allowed to speak.

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Garton Ash is even opposed to the banning of hate speech. "If we were to put together all the characteristics on the basis of which people may feel themselves to be insulted, and all the taboos of all the cultures in the world, and then rule them off-limits, there would be precious little left that we could talk about," he writes. But a minimum degree of civility is also required, Ash argues.

But where does the border lie? It must exist, but where, exactly, in a country like Germany, with its Nazi past and its right-wing terrorist present? A country in which an anti-Semite attacks a synagogue in Halle and murders two people, a country in which politician Walter Lübcke, a conservative, became the target of what is believed to have been a political assassination in June. Both perpetrators became radicalized online, spurred on by unbridled internet rhetoric.

Garton Ash argues we have to be extremely careful with the limits we set, even if that is difficult. An increase in freedom of expression leads to greater diversity of opinion which, in turn, leads to more disputes. This is challenging, of course, but Garton Ash argues we must resist the urge to quickly withdraw when insulted, but to instead either ignore hate speech or to confront it with confidence. "Rather than encouraging people to be thin-skinned, what we need in a world of increasing and increasingly intimate diversity is to learn how to be a little more thick-skinned, to live and cope with difference."

He says that it creates more problems when a society goes too far in taking sensitivities into account. Garton Ash argues that for years in Germany, intellectuals, journalists and politicians failed to sufficiently address societal fears about Muslim immigration. "But the more people didn't say it publicly," writes Garton Ash, who speaks fluent German and knows the country well, "the more they thought it -- and probably said it privately, in the corner pub and at home. So, the pressure of the publicly unspoken built up, like steam in a pressure cooker" and the lid finally burst off in 2010 with the publication of Thilo Sarrazin's book "Germany Abolishes Itself," a bestselling xenophobic screed that sold millions. "Precisely because" immigration is such an important issue in Germany, "it is damaging that the German discussion of it should arrive in a half-boiled sauce of eugenics and cultural pessimism," Ash wrote in an earlier essay.

Universities on the Frontlines

As in the U.S., the universities in Germany are the focal point for struggles over what can and cannot be said. And it is no coincidence that one of the most prominent of these cases revolves around the historian and violence researcher Jörg Baberowski of Berlin's Humboldt University. In 2015, Baberowski dared to criticize Angela Merkel's refugee policies and her emphasis on creating "welcoming culture" in Germany receptive to refugees and immigrants. When a national organization of college students who are members of the conservative Christian Democratic Union (CDU), and the CDU-affiliated Konrad Adenauer Stiftung think tank invited him to an event at the University of Bremen, it had to be relocated to another location and police had to conduct patrols in front of the building. The General Student Committee (AStA) on campus had distributed flyers with the headline: "Right-wing radicals are taking to the stage!"

Baberowski sued the student organization. Since then, the Higher Regional Court of Cologne has ruled to lift an injunction prohibiting Bremen AStA from making claims that Baberowski spreads theories that glorify violence, that he trivializes arson attacks on refugee shelters and that he advocates racism and represents right-wing extremist positions. Under the ruling, the student group is again free to make those assertions. The court did not rule that Baberowski is doing any of these things -- only that it falls under the freedom of expression for the student group to make those claims.

Protests this May against Islam Studies scholar Hans-Thomas Tillschneider at the University of Bayreuth, who runs the class "A Compact Introduction to Islamic Law," were tame by comparison. Tillschneider is a member of the state parliament of Saxony-Anhalt with the AfD. He's the party's science policy coordinator in the state legislature and his office in the city of Halle had for a time been inside the offices of the far-right Identitarian Movement in the city. He is considered to be a right-wing extremist, even by the standards of his own party.

'A University Must Endure Controversial Points of View'

The university appeared to have had everything under control. Security guards and police prevented protesters from entering into the building. Tillschneider described the demonstrators on Twitter as "diabolic totalitarians." The university administration responded to the situation with a statement: "We live in a state governed by the rule of law, with clear rules that we abide by. A university must also endure controversial points of view and counter absurd theses through argumentation."

Susanne Schröter, professor of ethnology at Frankfurt's Goethe University, became particularly well-known because she's been caught up in free speech controversies twice now. Her research focuses on "normative orders," the question of what can be said and what cannot.

The first controversy was in 2017. Rainer Wendt, the head of the German Police Union (DPolG), was scheduled to speak as part of a series of lectures organized by Schröter. The title of his talk was: "Everyday Police Life in an Immigrant Society." Wendt has developed a reputation for controversy because he proposed the erection of a fence at the German border during the refugee crisis and claimed that police in Germany conducted no racial profiling.

Schröter was flooded with mails and insults on social media asking how she could dare to invite a racist to the university. Then 60 research associates at the university wrote an open letter to Schröter that was highly critical of Wendt, claiming that he is an active advocate of racist police practices. "It is our expectation that Rainer Wendt will not be offered a stage at the Goethe University in Frankfurt."

Schröter ultimately cancelled the event -- not because she had been persuaded by the arguments, but because she didn't want to be responsible for any injuries that might have ensued in a police operation.

Then, in May, it happened again. This time, the controversy surrounded a planned event on the subject of headscarves. Schröter had invited speakers with a range of differing opinions to participate. This time, the attacks came from the left and the right, and activists demanded Schröter's dismissal from the university. University management, though, supported her and 700 people registered their interest in the event. In the end, very few protesters showed up.

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