獨逸基本法上 表現의 自由 制限에 대한 批判的 考察

Abstract

The German Basic Law protects the freedom of speech, it does so to a much more limited degree than does the Free Speech Clause of the First Amendment in the U.S. Constitution. The reasons for this are many and varied. Perhaps most importantly, free speech simply is not the most important constitutional value in the German legal order. Instead, pursuant to the first clause of the Basic Law, human dignity holds this position. Article 1 of the Basic Law is both the supreme constitutional principle and a fundamental right. Accordingly, when cases present facts in which human dignity and free speech collide, free speech usually must give way. A second reason for the weakened guarantee of free speech in Germany relates to Germany's status as a militant democracy. According to this, Free speech, including core political speech, has definite limits in Germany, so speech which has as its aim the destruction of democratic self-government enjoys absolutely no constitutional protection under the Basic Law. Obviously, a militant democracy reflects the history of National Socialist dictatorship under Adolf Hitler. Indeed, the Basic Law itself prohibits political parties who wish to disestablish democratic self-government in Germany. Accordingly, an entire category of core political speech activity enjoys no protection whatsoever in the German constitutional system. Conclusively, Germany is committed to the freedom of speech, but only within carefully circumscribed limits, and only to the extent that the commitment to free speech does not conflict with other constitutional values, including human dignity and the preservation of the democratic order. So I argue that the speech regulations in the German Basic Law cannot easily coexist with a strong commitment to protect the freedom of speech.