The importance of the fundamental right to freedom of expression in assessing derogatory utterances about a political party in an election campaign.
Order of the First Panel of 22 June 1982 -- 1 BvR 1376/79 --
in the proceedings on the constitutional complaint of Dr. Sch. . . against the judgment of the Nuremberg Regional Appeal Court of 19 November 1979 - 5 U 128/79 - and foregoing decisions.
The judgment of the Nuremberg Regional Appeal Court of 19 November 1979 - 5 U 128/79 - infringes the complainant's fundamental right under Article 5(1), first sentence, of the Basic Law. It is set aside. The case is referred back to the Regional Appeal Court.
The Free State of Bavaria shall reimburse the complainant the necessary costs.
EXTRACT FROM GROUNDS:
The constitutional complaint concerns the question of the importance to attribute to the fundamental right of free expression of opinion in deciding a civil action for an order to cease and desist from derogatory utterances about a political party in an election campaign.
1. The complainant, who has since become a member of the European Parliament, was a candidate for election to that Parliament on the SPD federal list; at election meetings he stated, among other things, that the CSU was "the NPD of Europe". The CSU, which was of the opinion that this utterance contained an untrue, and moreover derogatory, factual claim, obtained a temporary order from the Regional Court against the complainant, restraining him on pain of a fine for contempt of court from asserting that the CSU was the NPD of Europe. This decision, initially taken without oral proceedings, was confirmed by a judgment of the Regional Court; the complainant's appeal was unsuccessful.
2. The Regional Appeal Court stated essentially the following:
The utterance complained of was by its wording a factual claim. For a legal assessment, it was not only the text itself but above all the recognizable meaning expressed in it that was decisive. This consisted in accusing the petitioner for the order of having intellectual, ideological and social bases, guiding ideas, values and political methods corresponding with those of the NPD; that the CSU was representing and pursuing at "European Parliament level" the views represented within Federal territory by the NPD. This assertion was however manifestly untrue. The CSU stood fully on the ground of the free democratic basic order, whereas the NPD was deemed to be a party acting against that order and endangering it. That this general opinion about the NPD was right emerged notably from the official Federal Report "Verfassungsschutz [internal security] 73". In these circumstances, however, the expression used by the complainant constituted severe disparagement in public opinion and thus a gross defamation. The complainant was, moreover, aware of this. He could not plead justification and privilege nor appeal to the fundamental right of free expression of opinion. It was even doubtful whether such electoral campaign methods fell at all within the area of protection of these provisions. However, even were one to follow Supreme Court case law, very far reaching on this point, no other outcome could apply; for the appraisal of the CSU as extreme Right, neo-Fascist and anti-constitutional at the same time constituted vilification meeting the requirements of para.185 of the Penal Code, inadmissible in principle even taking Article 5(1) GG into account.
With the constitutional complaint, the complainant objects to infringement of his fundamental rights under Article 5(1) and Article 2(1) GG. In justification he submits the following:
The Regional Court and Regional Appeal Court had in their decisions misjudged the effect of the fundamental rights on the interpretation and application of the provisions of the civil law . . . (details).
1. The Bavarian State Ministry of Justice regards the constitutional complaint as unjustified. The complainant had been forbidden for the future from uttering particular ideas. This prohibition did not infringe his fundamental right to free expression of opinion . . . (details).
2. The petitioner for the order in the initial proceedings joined the opinion of the Bavarian Ministry of Justice.
The constitutional complaint is admissible . . . and justified.
It is directed against decisions on a right to a forbearance in civil law. The interpretation and application of the decisive provisions on this is a task for the ordinary courts, which in deciding have to take account of the effect of fundamental rights on the provisions of the civil law. All that is incumbent on the Federal Constitutional Court is to decide whether the courts have properly assessed the scope and effect of the fundamental rights in the area of the civil law (BVerfGE 7, 198 [206 f.] - Lüth; invariable case law; cf. also BVerfGE 60, 234 ). Here the boundaries to its possibilities of intervention cannot be drawn rigidly and fixedly. For they depend on the intensity of the impairment of fundamental right: the more a civil judicial decision curtails prerequisites for freedom of existence and action protected by fundamental rights, the closer must be the Constitutional Court's examination of whether such curtailment is constitutionally justified (BVerfGE 54, 129  - art criticism - with further references). Such further-reaching investigation would be prompted were the impugned appeal judgment to be understood, as the Bavarian State Ministry of Justice states, to the effect that the complainant is for the future to be forbidden not only the use of an expression but also the utterance of particular ideas (BVerfGE 42, 163 [168 f.]). Whether this is the case need not however be gone into, since the decision displays errors of interpretation based on a view of the significance of the fundamental right guaranteed in Article 5(1), first sentence, GG, and in particular of the scope of its area of protection, that is wrong in principle, thereby already reaching the threshold of infringement of objective constitutional law that the Federal Constitutional Court is bound to correct (cf. BVerfGE 18, 85 ).
The Regional Appeal Court did go into the fundamental right to freedom of expression of opinion in the grounds of its decision. However, misjudging this fundamental right, it wrongly regarded the utterance complained of not as an expression of opinion, protected in principle, but as a - false - factual claim, and in its statements on restriction of freedom of opinion it left out of account principles that are decisive for the attributes of the fundamental rights of Article 5(1) GG and their limits.
1. By contrast with the Regional Appeal Court's view, in assessing the utterance complained of as a factual claim, Article 5(1), first sentence, GG may not be disregarded.
a) This fundamental right guarantees everyone, without distinguishing explicitly between "value judgement" and "factual claim", free expression of opinion. Everyone is to be able to say freely what he thinks, even if he does not or cannot give any verifiable reasons for his view (BVerfGE 42, 163 [170 f.]); and at the same time, the point of expression of opinion is to produce mental effects on the environment, to act to mould opinion and to persuade. Accordingly, value judgements, which always seek to secure a mental effect, namely to persuade others, are protected by the fundamental right of Article 5(1), first sentence, GG. The protection of the fundamental right relates primarily to the speaker's own opinion (BVerfGE 7, 198 ). It is immaterial whether his utterance is "valuable" or "worthless", "right" or "wrong", emotionally or rationally justified (BVerfGE 33, 1 [14 f.]). Where in an individual case what is involved is a contribution to the clash of ideas on a matter that substantially affects the public, then the presumption is in favour of admissibility of free speech (BVerfGE 7, 198 ). Even harsh and exaggerated utterances, specifically in public controversy, in principle come under the area of protection of Article 5(1), first sentence, GG (cf. BVerfGE 54, 129 ); the question can only be whether and to what extent the provisions of the general laws and the right to personal honour (Article 5(2) GG) may draw limits here.
This does not apply in the same way to factual claims. Wrong information is not an object worthy of protection from the viewpoint of freedom of opinion (BVerfGE 54, 208 ). The deliberate assertion of untrue facts is no longer protected by Article 5(1) GG; the same applies to wrong quotations (BVerfG, loc.cit.). In other respects a differentiation is called for, concerned mainly with not setting requirements on the obligation to the truth in such a way as to make the function of freedom of opinion suffer (BVerfGE, loc.cit. [219 f.]). The principle that the presumption is in favour of the admissibility of free speech accordingly applies only restrictedly to factual claims; to the extent that false factual claims are not a priori outside the area of protection of Article 5(1), first sentence, GG, they are more easily open to restriction on the ground of the general laws than is expression of an opinion.
Accordingly, in determining what, as expression of an "opinion", is covered by the protection of the fundamental right, the element of taking a position, of having one's way of thinking, of opining in the context of a clash of ideas, is decisive; the worth, the rightness, the wisdom of the statement do not come into it. The communication of a fact is not in the strict sense expression of an "opinion", since it lacks that element. It is protected through the fundamental right to freedom of expression of opinion because and insofar as it is a precondition to the formation of opinions, guaranteed by Article 5(1) GG taken as a whole. By contrast, that which cannot contribute to the constitutionally presupposed formation of opinion is not protected, in particular demonstrably or deliberately untrue factual claims. By contrast with expression of opinion proper, the rightness of the statement may come into it as far as constitutional protection of communication of fact is concerned.
From all this, the term "opinion" in Article 5(1), first sentence, GG is in principle to be understood broadly: where an utterance is characterized by the elements of taking a stance, of having one's way of thinking or of opining, then it falls within the area protected by the fundamental right. This must also apply where these elements, as frequently, combine or mix with elements of factual communication or claim, at any rate where the two cannot be separated and the factual content takes second place to the evaluation. Were the factual element to be held to be decisive in such a case, then the fundamental right to protection of freedom of opinion could be considerably curtailed.
b) On these criteria, the sentence "The CSU is the NPD of Europe" contains as a part of an election speech an expression of opinion in principle protected by Article 5(1), first sentence, GG. If the sentence is taken literally, it is clearly false as the expression of a fact, since the CSU cannot be identical with a (non-existent) NPD of Europe. Making such an absurd statement was clearly not in the intention of the complainant; nor would anyone understand it in this meaning. However, as soon as attempts are made to derive the meaning of the sentence, the boundary to the area of having one's mind and opining, and thus also of the clash of opinions, is unavoidably crossed.
This follows from the substantive poverty of the utterance (cf. BGHZ 45, 296  - Höllenfeuer). The assertion of at any rate a concrete and tangible fact cannot be derived from it; it is, instead, more of an overall judgement. This emerges with particular clarity when the object of the utterance is taken into consideration: the point was to induce hearers to give their votes in the elections to the European Parliament to the SPD. To secure this, a typical means was used, namely polemic against the political opponent, with the intention to demarcate himself from him emphatically. General, unsubstantiated formulas are regarded as particularly suitable for this. These are basic forms of every election campaign, which belong in principle to the sphere of the opinionative and therefore to the sphere of protection of Article 5(1), first sentence, GG. It is clear to all those taking part in an election meeting that the speaker is expressing his view, wishing to convince or persuade the hearers with it. Admittedly, elements of the factual can be detected in the sentence complained of, more or less to the effect that the CSU is on the extreme Right. But even then the evaluative element takes first place over the factual one; the factual content of the statement, which is so poor in substance, takes second place to the evaluation, so that nothing changes as to the nature of the sentence as expression of opinion.
c) This constitutional position has been fundamentally misjudged by the Regional Appeal Court. The Court could not escape from the need to take Article 5(1), first sentence, GG into account in evaluating the sentence complained of by terming the complainant's utterance for civil law purposes as a false factual claim, in which case justification is ruled out. The constitutional guarantee of freedom of expression of opinion cannot be set aside by interpretation and application of ordinary law; this would be incompatible with primacy of the Constitution (Article 20(3), Article 1(3) GG) (BVerfGE 60, 234 ).
2. Insofar as the Regional Appeal Court, despite classifying the sentence complained of as a false factual claim, takes it that an effect of Article 5(1), first sentence, GG on the provisions to be applied does come into consideration, but that the complainant has exceeded the limits set to his fundamental right by the "general laws" and the protection of personal honour (Article 5(2) GG), it has misjudged the repercussions of the constitutional guarantee on the "general laws" under consideration here, those of paras. 823, 1004 BGB. These must be seen in the light of the significance of the fundamental right to freedom of opinion; they are in turn to be interpreted on the basis of a recognition of the value-setting significance of this fundamental right in a free democratic State, and thus themselves in turn restricted in their effect of limiting the fundamental right (BVerfGE 7, 198 [208 f.]; invariable case law; cf. also BVerfGE 60, 234 ).
a) The decisive point for this restriction, however, is above all the object of the expression of opinion. If the fundamental right is not being used for purposes of private debate, but instead the utterer is seeking primarily to contribute to the formation of public opinion, then while effects of his utterance on the area of the rights of third parties are an unavoidable consequence, they are not the actual object of the utterance. Protection of the legal right in question can and must retreat the more, the less the case is one of an utterance aimed directly against this legal good in private, particularly economic, intercourse and in pursuit of one's own interests, but instead one of making a contribution to the clash of ideas in a matter substantially concerning the public by someone legitimated to do so; here the presumption is in favour of admissibility of free speech (BVerfGE 7, 198 ), since otherwise freedom of opinion, the precondition for a free and open political process, would be cut to the quick.
This must apply to a special degree when the matter, as here, is one of debate in an election campaign, that is, a situation in which the political clash of opinions is intensified to the utmost. By Article 21(1), first sentence, GG, the political parties participate in the forming of the political will of the people; this takes place particularly through involvement in elections, which are in parliamentary democracy the most important mode of this formation of opinion (cf. BVerfGE 52, 63 ). Since the electoral law in force presupposes political parties for the preparation and holding of elections, these are notably also organizations to prepare for elections (cf. BVerfGE 8, 51 ). They are performing the task set them by Article 21(1), first sentence, GG, termed by para.1(1), second sentence of the Parties Act a "public" one, by preparing for the act of election as such as an act of democratic legitimation of the organs representing the people (cf. also para. 1(2), para. 2 PartG [Parties Act]). This task, as one by its essence political, cannot in principle tolerate any regulation of content, since it would otherwise be deprived of one of its basic preconditions. To the extent that the case is one of disputes between political parties in an election campaign, accordingly, Article 21(1), first sentence, GG is of essential importance for assigning the roles of freedom of opinion and of restrictive laws: it enhances the presumption in favour of the admissibility of free speech, with the consequence that action may be taken against the expression of opinion only in the most extreme cases.
The complainant's utterance complained of constitutes one party representative's public critique of another political party; it is a contribution to the public debate, and moreover to the debate between political parties in an election campaign. This circumstance has not been taken into account by the Regional Appeal Court. While the appeal judgment does deal with the complainant's objection that his utterance is covered by Article 5(1) GG and para.193 of the Penal Code (justification and privilege), and admits that the case law according to which defamatory political critique could be justified by these provisions goes very far, it does not however go into the question of what this means for interpreting the "general laws" decisive in the initial proceedings, thereby missing a constitutional precept that is essential to this interpretation. Taking it into account was not even made superfluous by terming the sentence complained of vilification; for this it would have been necessary to point to evidence that the complainant was concerned not with the matter but primarily with intentional injury to the petitioner for the order in the initial proceedings.
b) The Regional Appeal Court has further left out of account the fact that allocation of the roles of freedom of opinion and of restrictive law depends essentially on whether and to what extent the person affected by the defamatory statements had himself taken part in the process of formation of public opinion protected by Article 5(1) GG, thereby submitting voluntarily to the conditions of the clash of ideas and relinquishing by this conduct part of his private sphere deserving of protection (BVerfGE 54, 129 ). This principle, developed with an eye to natural persons, must apply all the more to political parties, since their existence and operation, by contrast with the private person or even politician, relate a priori and exclusively to political life. The fact that the petitioner for the order in the initial proceedings, as a political party, had accepted the conditions of the political clash of ideas needs no establishing. Given this state of affairs, there is much in favour of the position that it had to put up even with harsh polemic, rightly perceived by a democratic party as derogatory, but by no means unusual in the day-to-day political struggle, especially since it had the possibility of defending itself politically (cf. BVerfGE 7, 198 ).
3. From the viewpoints set out, the Regional Appeal Court thus inadequately determined the scope and effect of the fundamental right to free expression of opinion. It is on these mistakes that the appeal judgment is based: it cannot be ruled out that the Court would have arrived at a different assessment had it taken Article 5(1), first sentence, GG into account in its scope for the questions to be decided. The judgment was therefore to be set aside. Pursuant to para.95(2) BVerfGG, the case should therefore be referred back to the Regional Appeal Court.
Judges: Dr. Benda, Dr. Böhmer, Dr. Simon, Dr. Faller, Dr. Hesse, Dr. Katzenstein, Dr. Niemeyer, Dr. Heußner.
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