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The Treatment of Hate Speech in German Constitutional Law (Part II)

By Winfried Brugger
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[Editors' Note: Part I of Prof. Brugger's article appeared in last month's German Law Journal (Vol. 3, No. 12 1 December 2002). The article originally appeared in Stocktaking in German Public Law p. 117 (Bullinger and Starck eds., 2002). It is republished here with the kind permission of NOMOS Verlag, Baden-Baden.] E. Analysis and Critical Evaluation of Specific Cases [42] As pointed out by the Federal Constitutional Court, a specific determination of the appropriateness of hate speech prohibitions can be based only on the circumstances of individual cases. Some particularly prominent cases are now reviewed. I. Insult of Individuals [43] Hate speech is commonly directed at groups of individuals on the basis of such unalterable shared characteristics as race, ethnicity, and gender. However, such speech can also be directed against lone individuals and still be punishable under criminal law if the verbal attack meets the definition of insult in 185 of the Penal Code. If such an insult is made in public and involves assertions of fact that sully the honor of a person, then 186 and 187 of the Penal Code apply. To what degree is honor guaranteed protection in such cases? What degree and what type of criticism must one tolerate without recourse to law? To better answer these questions, it is useful to divide the concept of honor into three levels. [44] (A) In its most basic sense, honor describes the status of a person who enjoys equal rights and who is entitled to respect as a member of the human community irrespective of individual accomplishments (menschlicher Achtungsanspruch). Thus, even lazy or dumb persons and criminals deserve this level of respect. The constitutional point of reference for this level of honor is the protection of the dignity of...