Brief Considerations on the German Constitutional Approach of the Freedom of Expression

AuthorCarmen Moldovan
PositionAssistant Professor, PhD, 'Alexandru Ioan Cuza' University of Ia?i, Faculty of Law, Romania
Brief Considerations on the German
Constitutional Approach of the
Freedom of Expression
Abstract: The process of understanding the concept of freedom of expression is very complex and it
implies thorough knowledge of the constitutional values and the analysis of the constitutional
tradition of different legal systems. At the same time, a balancing operation is necessary between the
value of freedom of speech and other fundamental rights, process that establishes limits of the
expression such as criminalizing hate speech or other actions which affect the individual dignity. Th e
human dignity has become a constant component of the constitutional case law of many States that
share the same characteristics due to the promotion of fundamental rig hts. In the absence o f a
hierarchy of rights and fundamental freedom, freedom of expressio n is analyzed in many cases as a
primary right (Kentridge, 1996, p. 254) that prevails over other fundamental rights. This study aims to
analyze the landmarks of the German constitution al interpretation of the concept of freedom of
expression, to identify its scope and types of speech excluded from the constitutional protection. The
choice of this constitutional legal order was justified by the complexity of this topic and the
specificity of the German history and tradition, elements that have contributed to an interesting vision
in the matter of conflict between different fundamental rights.
Keywords: German Constitution; conflict of rights; freedom of the press; artistic freedom
1. Introduction
The German theory on freedom of expression is based on the provisions of the
Basic Law (Grundgeset)2 and its interpretation by the Federal Constitutional Court
(Bundesverfassungsgericht) which directed, corrected and streamlined legislation.
This interpretation was significant and greatly influenced by the concept of human
dignity contained in Article 1 of the Constitution (Bognetti, 2005, pp. 92-93).
1 Assistant Professor, PhD, “Alexandru Ioan Cuza” University of Iași, Faculty of Law, Romania.
Address: 11 Carol I Boulevard, Iași, Romania. Phone: +40232201102 int. 2523; Fax: +40232201858.
Corresponding author:,
2 Grundgesetz für die Bundesrepublick Deutchland adopted at 23rd of May 1949. English translation
in Axel Tschentscher, The Basic Law (Grundgesetz). The Constitution of the Federal Republic of
Germany (May 23rd, 1949), Jurisprudentia Bern Würzburg.
AUDJ, vol. 11, no. 2/2015, pp. 36-44

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT