Article by Ronald J. Krotoszynski, Jr.
Since Brandenburg v. Ohio, the United States Supreme Court has protected racist speech under the Free Speech Clause of the First Amendment. Critics of this approach routinely invoke the existence of hate speech regulations in other democracies as compelling evidence that such rules can comfortably coexist with a meaningful commitment to the freedom of speech. Germany, in particular, often receives favorable mention as an example of a nation that has successfully integrated hate speech regulations and a strong commitment to the freedom of speech. Promoting equality and encouraging the participation of racial and ethnic minorities in the project of democratic self-government certainly constitute important social goals. Accordingly, legal reforms designed to achieve these objectives deserve careful consideration.
Even granting the importance of the equality project, however, Germany provides a poor model for the United States to follow. Germany's Federal Constitutional Court subordinates the freedom of expression to a remarkable degree to advance other constitutional values; dignity and personal honor routinely take precedence over free speech claims in German constitutional decisions. To some extent, the Constitutional Court's approach simply reflects the Basic Law itself: the Basic Law places human dignity, free development of one's personality, and the protection of personal honor above free speech in an overt hierarchy of values. Moreover, the Basic Law sets forth concrete limits on the freedom of speech, including limits designed to protect personal honor and safeguard the democratic social order. The Basic Law, however, provides only a partial explanation. Broader cultural traditions in Germany also help to explain why dignity and personal honor hold a preferred place within contemporary German constitutional law.
A Comparative Perspective on the First Amendment: Free Speech, Militant Democracy, and the Primacy of Dignity as a Preferred Constitutional Value in Germany argues that the German example does not really support the argument that hate speech regulations can easily coexist with a strong commitment to protect the freedom of speech. The degree to which German law subordinates free speech claims would be difficult, if not impossible, to reconcile with both legal and cultural norms favoring speech rights in the United States. Moreover, the importance of cultural values in explaining the German approach also suggests that importing Germany's regime for regulating hate speech might be a difficult, if not impossible, undertaking.
About the Author
Ronald J. Krotoszynski, Jr. Professor of Law, Washington and Lee University School of Law.
Citation
78 Tul. L. Rev. 1549 (2004)