42 No. 77 JUSTICE opinion, they are in principle initially covered by the scope of protection of freedom of expression, which in German law is regulated in Article 5 (1) of the Basic Law. The personal scope of protection of freedom of expression encompasses “everyone,” meaning any bearer of fundamental rights, especially natural persons and legal persons under certain conditions.25 With regard to the material scope of protection, it is required that the expression be an “opinion.” According to consistent case law of the Federal Constitutional Court (BVerfG), opinions are characterized by “an element of judgment, of taking a position, of belief within the framework of an intellectual debate.”26 These must be distinguished from mere statements of fact which, unlike opinions, can be verified. Yet even mere factual statements may fall within the scope of freedom of expression, namely when and insofar as they are prerequisites for the formation of an opinion. Proven or knowingly false statements of fact are not protected by freedom of expression if they do not contribute to opinion formation.27 Even when the dissemination of conspiracy narratives is, in principle, covered by the scope of freedom of expression, this right is not without limits. According to Article 5(2) of the Basic Law, freedom of expression finds its limits in the protection of honor (safeguarded by § 185 StGB [insult] and § 187 StGB [defamation]), protection of youth, and in the general laws. “General laws” in this sense are laws that do not serve to prohibit a particular opinion, i.e., are neutral with respect to opinion, but “rather serve to protect a legal interest that is to be protected absolutely, without regard to a particular opinion – to protect a communal value that takes precedence over the exercise of freedom of expression.”28 In practice, the relevant limitations are found in regulations of assembly law, police and public order law, offenses protecting honor, and the provisions of § 130 StGB. 2. § 130 of the German Criminal Code as a Limitation on Freedom of Expression As a limitation on freedom of expression, § 130 of the German Criminal Code (Strafgesetzbuch, StGB) – the so-called incitement to hatred provision – occupies a special position. This is, first, because doubts have been raised concerning the general applicability of paragraphs 3 and 4 of the provision (approval of the Holocaust and of the National Socialist regime of violence and arbitrary rule). It therefore appears questionable whether § 130 satisfies the formal requirements for a statutory limitation under Article 5 (2) of the Basic Law (Grundgesetz, GG). Paragraphs 3 and 4 are not drafted in general terms but rather prohibit a specific attitude toward totalitarian and fascist regimes, namely, concretely inflammatory expressions relating to National Socialism. Nevertheless, the Federal Constitutional Court (Bundesverfassungsgericht) has held that paragraphs 3 and 4 of § 130 StGB are compatible with Article 5 (1) and (2) GG, even though they are not generally applicable laws.29 This exception from the requirement of general applicability was justified for statutes serving to prevent the propagandistic glorification of the National Socialist regime of violence and arbitrariness between 1933 and 1945. The Basic Law itself is conceived as a counter-draft to the National Socialist system of rule.30 Second, § 130 StGB plays a distinctive role in relation to conspiracy narratives, since the provision specifically addresses the danger emanating from expression as a communicative precursor act to violence. The close link between inflammatory expression and physical violence – postulated with respect to statements denying or trivializing National Socialist crimes – constitutes the rationale (Strafgrund) for criminal liability under paragraph 3. This is based on the understanding that “mockery, agitation, and exclusion (…) inherently entail the risk of violent attacks and persecution.”31 25. Herbert Bethge, “Meinungs-, Pressefreiheit, Rundfunk, Freiheit der Kunst und Wissenschaft,” in GRUNDGESETZ 276 (C.H.Beck, 10th ed. 2024). 26. Id. para. 25. 27. Id. para. 27. 28. E7, 198/209 f. (Lütt judgement). 29. BVerfGE 124, 300, 320 ff. (Nov. 11, 2009) - 1 BvR 2150/08.; BVerfG (3rd Chamber of the First Senate), decision of 22, 2018 – 1 BvR 673/18, para. 23. 30. BVerfGE 124, 300, 328 (Nov. 11, 2009) - 1 BvR 2150/08; BVerfG (3rd Chamber of the First Senate), decision of June 22, 2018 – 1 BvR 673/18, para. 23. 31. Thomas Fischer, “Volksverhetzung,’’ in STRAFGESETZBUCH 1052 (C.H. Beck, 72th ed. 2025).
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