Freedom of expression is a cornerstone of democracy and is enshrined in Article 5 of the German Basic Law. It guarantees everyone the right to freely express and disseminate their opinions in speech, writing and images. At the same time, it includes freedom of information, freedom of the press and freedom of reporting through radio and film. However, this fundamental right is not absolute – it is limited by general laws, the protection of minors and the protection of personal honor. The balance between freedom and protection is essential for social coexistence and the rule of law.
As a lawyer, I would like to explain to interested foreign readers what freedom of expression in Germany is all about, especially after the shocking and in some cases embarrassing speech by the US Vice President JD Vance in Munich 2025.
The importance of freedom of expression
Freedom of expression is not only an individual right, but also a cornerstone of democracy. It enables free intellectual debate and the public discussion of political and social issues. The Federal Constitutional Court regularly emphasizes its fundamental importance for the free and democratic basic order. Especially in a pluralistic society, it is essential that citizens can express their convictions and enter into dialog with others without fear of state persecution.
The limits of freedom of expression
Despite its high status as a fundamental right, freedom of expression is subject to certain limits. The best known limits are
- General laws: These include, in particular, criminal law, which criminalizes insult, defamation or incitement to hatred.
- Protection of minors: Content that is likely to endanger children and young people can be restricted or banned.
- Personal honor: Freedom of expression ends where the rights of others are violated, in particular dignity and personal rights.
The distinction between permissible expression of opinion and inadmissible abusive criticism poses a particular challenge. While pointed, exaggerated or even insulting expressions of opinion are generally protected, this protection does not apply if the defamation of a person is in the foreground and no factual debate is recognizable.
It is a European conviction that freedom of expression has limits – narrow limits, but the rights and protection of others must be respected. Even if there is a movement (especially in Scandinavia) to abolish insults as a criminal offense, the civil defense remains in place. Nevertheless, no one is prosecuted for their political views and – unlike the Trump administration – no reporters are excluded from government conferences. In this respect, people in the USA may also consider for themselves that it obviously depends on the perspective; not everything that is (currently) practiced in the USA is met with understanding here.
Incitement to hatred as the limit of freedom of opinion
A particularly sensitive area is incitement to hatred, which is regulated in Section 130 StGB. This standard protects the public peace from hate speech, particularly against certain population groups. German case law pays particular attention to ensuring that freedom of expression is not misused as a cover for racist, anti-Semitic or xenophobic statements.
For example, the trivialization of Nazi crimes by comparing measures against the unvaccinated with the November pogroms of 1938 was classified as criminal incitement to hatred. The courts always weigh up the facts: They examine whether a statement is merely provocative or whether it endangers public peace and deliberately incites hatred against population groups.
Why are there limits?
The existence of boundaries is not a contradiction to freedom of expression, but a necessary complement to it. Unrestricted freedom of expression would quickly lead to other fundamental rights, such as the protection of human dignity or the right to physical integrity, being undermined.
A functioning legal system must therefore always weigh up the interest in freedom of expression against the protection of other legal interests. Especially in times of digitalization and the spread of fake news, this balancing act is becoming increasingly important. For example, it is not compatible with freedom of expression to spread false factual claims about a person that cause lasting damage to their reputation.
Censorship in German law
Censorship in the legal sense refers to the preventive control or suppression of expressions of opinion by state authorities before they are published. In Germany, such pre-censorship is expressly prohibited by Article 5 (1) sentence 3 of the Basic Law: “Censorship shall not take place.” This means that the state may not decide in advance on the publication of opinions, media content or art.
However, this ban on censorship does not mean that expressions of opinion cannot be restricted or sanctioned retrospectively. The German legal system allows retrospective action to be taken against unlawful statements such as insults, defamation or incitement to hatred. However, such restrictions are only imposed after publication and are based on general laws that serve to protect other legal interests such as human dignity or public order. Practical demarcation:
- Unlawful censorship: A government ban or control prior to publication (e.g. a reservation of authorization for newspapers or books).
- Permissible subsequent sanctions: Criminal consequences or injunctions against previously published content if it violates existing laws.
There are special cases: although classic pre-censorship is prohibited, there are a few exceptions in which preventive measures to control content are possible. Examples include the protection of minors, where films or computer games are classified by the Federal Review Board for Media Harmful to Young Persons, or the right of assembly, where demonstrations can be banned under certain conditions.
Conclusion
Freedom of opinion in Germany is a valuable asset that safeguards both individual development and democratic decision-making. Its limits do not serve censorship, but the protection of the legal interests of others and public order. The challenge is to shape these boundaries in such a way that free discourse is maintained without individuals or groups being harmed by hate speech or defamation.
Ultimately, freedom of expression remains a balancing act between freedom and responsibility that must be continuously reassessed in social discourse. In this context, it should be remembered that, according to the local legal culture, censorship in the constitutional sense alone means prior state control, which is inadmissible in Germany. Restrictions on freedom of expression are, however, possible through subsequent legislation, as long as they are carried out within the framework of general laws and are not aimed at suppressing a particular opinion.
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