Freedom of Speech under the Shadow of the Third Reich: On the Evolution of German Federal Constitutional Court's Decisions regarding Extreme Right-wing Speech
Author：Hui-Chieh Su, Assistant Research Fellow
In a growing number of Internet hate speech incidents in Taiwan and abroad, we can see various discussions on the pros and cons of the regulation of speech. Generally speaking, regulation of freedom of speech can be divided into two categories, form regulation and content regulation. On the basis of different historical contexts and legal issues, the evolution of theory of freedom of speech in Germany has a different starting point and path in comparison with that in the USA, which Taiwan is more familiar with. Under the dark shadow of the Third Reich past, the German jurisprudence of freedom of speech has been struggling to achieve the balance between conflicting values such as “the rule of law vs. anti-Nazism” or “free marketplace of ideas vs. transitional justice”. The substantive dispute and legal studies of freedom of speech in Germany has always been focusing on the issue of “whether content regulation of speech is covered under general law.”
In view of the important role the decisions of the German Federal Constitutional Court played in shaping the theory of freedom of speech in Germany, this paper chooses to explain the development of the Federal Constitutional Court’s opinions regarding the protection of freedom of speech by virtue of analyzing its decisions on extreme right-wing speech, when the Court usually issues critical decisions in such cases. The comprehensive analysis this paper makes not only reveals sophistication of the German Federal Constitutional Court’s argumentation about freedom of speech over time, but also reflects the close connection of abstract legal theories to concrete time-space context. Consequently, this paper may provide Taiwan with reference for developing its constitutional theory and practice.