"Soldiers are murderers." That's what it says on the sticker on a student's car. The "t" in "soldier" looks like a cemetery cross, including: a fake signature of the writer Kurt Tucholskyfrom which this sentence originated. During the Gulf War 1991 the student drives through Krefeld.
Soon he gets mail: He should be punished for incitement and insult. The student defends himself, goes to the Federal Constitutional Court and refers to the freedom of expression: "Everyone has the right to express his opinion freely in word, writing and image and to spread", this is stated in Article 5 paragraph 1 of the Basic Law.
The Federal Constitutional Court actually overturns its conviction. The decision triggers turmoil across the country: death threats against the judges. Police protection. Politicians are outraged: "scandalous wrong judgment of the Federal Constitutional Court since the existence of the Federal Republic!" Soldiers of the Bundeswehr see themselves discredited.
The excitement of that time is repeated again and again. Even today, people often ask themselves when they read a comment that they disagree with: "How can this website or editorial team leave something like that?" Or: "How can an authority permit a demonstration with such a statement?"
What is an opinion?
Then as now, the excitement underlies misunderstandings about opinion and its limitations.
What is an opinion? An opinion reflects a personal value judgment. The essential feature of the opinion is that it can not be "right" or "wrong", it can not be verified. This distinguishes the opinion from the factual statement. If I say, "my neighbor beats his dog", this statement can be checked, so it is a factual statement. On the other hand, if I say, "The lifestyle of my neighbor is unacceptable," that can not be verified. Others can see it differently. It is one Expression.
We have to take into account the context of a statement. Since the above-mentioned student was a legal layman, he used "murder" not in the criminal sense, but colloquially, as a judgmental word for the neutral term "kill". He voiced an opinion, saying: I hate soldiers killing people. Quite similar is the name of the Federal Chancellor as "Queen of the Schleuserbanden" (see photo). This phrase means: I think your refugee policy is wrong.
Not always you can opinion and fact statement cleanly separate, because we form opinions based on facts. "Murderer also contains factual assertion that someone kills others," Queen of smugglers "that politics in Germany attracts refugees. Therefore, a factual statement of freedom of expression may be included if it "hangs" on the opinion. But those who disseminate facts that are clearly untrue can not rely on freedom of expression. He can make himself punishable, for example, because of slander or libel.
Freedom of expression has limits. It can be limited by laws that protect honor, for example. Such a law is the Insult paragraph.
The border between freedom of expression and insult
But when is a person's honor violated? The freedom of expression implies that not all people have to find each other good. We have a miserable opinion of each other and spread: a blue-eyed brown-eyed, a Muslim about a Catholic, a woman about men and a student about soldiers. Being XY-hostile - that's allowed in Germany.
The line between freedom of expression and insult runs where someone does not want to contribute to the discussion, but the honor to attack another person. There are three criteria to reach this limit:
The first criterion is: How I say something. Classic bad words are always insults. If I say "my neighbor is an asshole", a court does not have to first carefully research what exactly I wanted to express. Similarly, it is the "abusive criticism" that wants to hurt others specifically in their honor. For example, a scathing criticism occurs when I call a television presenter a "milked goat."
That does not mean that I always have to formulate my opinion politely and factually, because that's where it comes from second criterion in the game:Wo I say something. Opinions are easily lost in a public discussion. If I want to make a difference, I can not write on my car: "I take the liberty of questioning whether certain reasons might not speak against certain military actions." A fight rages around the attention, so I can also use "combat terms". to use. I can aggravate, exaggerate, be polemical. A strong word like "murderer" can be justified in public discussion.
That's crucial third criterion: At who I relate something. The further my statement is from a concrete person, the more violent my choice of words may be. For the sooner I criticize a social phenomenon and the less I attack a specific person in their honor.
That does not mean that I can say everything about a group. Anyone who is so against a group mood, that he endangers peace in the country, because of rabble-rousing make punishable. For example, by the person inciting hatred or violence or not only criticizing the people in this group, but treating them literally as a subhuman, thus denying them human dignity.
One level of harmless one can offend people in groups also "normal". This assumes that the group is manageable. If someone writes on the internet "All men are idiots", no man can seriously refer to the statement personally. It is different when I talk about "the German doctors" or "the German judges". There are not that many, and because of their work clothes their members are well defined. You can be offended as a group. The same applies to the active soldiers of the Bundeswehr.
The sticker on the student's car was not directed against the soldiers of the Bundeswehr, because they were not used in the Gulf War. The Federal Constitutional Court rated his "soldiers are murderers" as a general statement about killing in the war.
Any nonsense, can be a protected opinion
So where did the tumults come from? Many had interpreted it as if the judges had approved the statement "soldiers are murderers" in content. And that at the highest court in the country!
But because an opinion can not be "right" or "wrong", all opinions are equal before the Basic Law. Only in this way can it be ensured that the state does not act as opinion watcher. It does not matter if I've researched 30 years for my opinion and collected good arguments - or if I'm licking them at my regulars' table. Everyone is allowed to have an opinion without thinking, without justifying it. Everyone may have an irrational opinion; an emotional outbreak is also under the protection of freedom of expression. The often-heard phrase "It's not enough to have an opinion, you have to justify it" is constitutionally wrong.
The Federal Constitutional Court has therefore not decided whether soldiers are colloquially "murderers". That's not his job. It can only decide if anyone sagen may, shethe seier Killer. Also, a website, editorial office or authority that someone has a statement do does not agree with this statement. It only respects the freedom of expression.
But what we can recognize is that even today it is very fast when it comes to "freedom of expression" and politicians and authorities can quickly qualify unpleasant reports as "hostile to the state or insulting". All the more it is necessary that there can be a space for private thoughts as well as exchanges. The internet is the right place for that. Therefore, monitoring instruments and control measures, even if they are organized by a state agency, are always a restriction of personal rights and, in the end, even of a functioning plural society and democracy!
This article is an excerpt from the book "I am what I am allowed to do". The text has been edited.