Read Part 1 here.
It is hardly surprising that an audience disillusioned with both politics and the media increasingly treats marathon podcasts featuring guests excluded from mainstream outlets as the highest form of public discussion. The host greets every claim with friendly curiosity, never challenges the premises, lets the guest speak uninterrupted for hours, and calls the result “real discourse”. At last, people say, someone is allowed to finish a sentence. This, supposedly, is what genuine democracy looks like.
In one respect, at least, YouTube comment sections and the rulings of the German Federal Constitutional Court are not as different as they might seem. Both tend toward a rather grandiose celebration of democratic debate—and of the freedom of speech that makes it possible. The Court routinely repeats the now-familiar formula that freedom of speech is “constitutive, in the strictest sense, of the free democratic order”.
That formulation dates to the landmark Lüth decision of 1958. The German Federal Constitutional Court upheld the constitutional complaint of Erich Lüth, who had been ordered by the civil courts to pay damages after calling for a boycott of a film directed by Veit Harlan, the filmmaker behind the Nazi propaganda classic Jud Süß. Harlan’s new film had been released in 1950, and Lüth urged the public not to see it.
The decision’s reach goes well beyond the immediate dispute, so that it occupies a pivotal place in German constitutional history. The Federal Constitutional Court used the Lüth case to present, for the first time in a systematic way, a constitutional doctrine that had been developing for several years and has continued to evolve ever since.
According to this doctrine, German Basic Rights are not merely individual rights protecting citizens against the state, as classical liberal constitutional theory would suggest. They also establish an “objective order of values”. Through the Basic Rights’ so-called radiating effect (Ausstrahlungswirkung), this objective value order extends into private law, meaning that private individuals, too, are bound by it, at least indirectly.
Within this constitutional order of values, moreover, there exists a hierarchy. Freedom of speech occupies an exceptionally high place in that hierarchy. In the Court’s words, it is “one of the noblest of all human rights”.
At first glance, all of this may sound rather unremarkable. In fact, it is anything but.
Nothing in the text of the Basic Law clearly establishes a hierarchy among the fundamental rights, at least not if one applies the standard methods of constitutional interpretation. Still less does the text suggest that freedom of speech, protected under Article 5, ranks above rights such as the general freedom of action guaranteed by Article 2. Both assumptions instead reflect the Federal Constitutional Court’s broader anti-positivist orientation, which found its first clear expression in the Lüth decision.
In the early years of the Federal Republic, a broad consensus emerged that the legal positivism of the Weimar era, which claimed that the law as such is entirely and exclusively constituted by the system of written norms in force at any given time, had contributed to the republic’s inability to resist National Socialism. Because it failed to anchor law in higher moral principles, positivism came to be seen as ethically inadequate.
In the early years of the Federal Republic, a broad consensus emerged that the legal positivism of the Weimar era had contributed to the republic’s inability to resist National Socialism.
The classic example is the legal philosopher and former Social Democratic justice minister Gustav Radbruch. During the Weimar Republic, Radbruch had been one of Germany’s leading legal positivists. After 1945, however, he abandoned the strict separation of law and morality. He sought instead to supplement positivism with a doctrine of natural law. His famous formula held that where positive law comes into conflict with substantive justice, the latter should prevail—but only when the contradiction reaches what he called “an intolerable degree”.
Against the backdrop of this broader anti-positivist climate, and under the influence of the value philosophy then in vogue, the Federal Constitutional Court turned to Rudolf Smend, perhaps the most prominent opponent of legal positivism during the Weimar Republic. Smend’s theory of constitutional integration, developed in the 1920s, emphasized the role of the Constitution in creating and sustaining political community. Under the very different conditions of postwar Germany, the Court adapted this theory into the foundation of a new understanding of fundamental rights.
In the view of the Lüth judgment declares, the Basic Law was never intended to establish a value-neutral constitutional order. Rather, its catalogue of fundamental rights embodies an “objective order of values”—a constitutional value system centered on “the human personality developing freely within the social community and its dignity”. For the Court, this amounted to a fundamental constitutional commitment that shaped the entire legal order.
The question, however, is whether this “fundamental constitutional commitment” was really made by the Basic Law itself—or by the Court.
The administrative law scholar Ernst Forsthoff, a student of Carl Schmitt, argued that the doctrine of the fundamental rights as an objective order of values amounted to a “departure from the classical rules of legal interpretation” and dissolved the very concept of law into questions of substantive content. Once the basic rights were no longer understood as formal boundaries protecting distinct spheres of individual liberty—each to be interpreted according to the traditional methods of textual analysis, purpose, systematic coherence and legislative history—but instead as expressions of a single, overarching system of values that even private citizens were bound to respect, the door was opened to judicial activism. The Court could now invoke the “value system” of the Basic Law to justify its own efforts to reshape state and society.
Once the basic rights were no longer understood as formal boundaries protecting distinct spheres of individual liberty, the door was opened to judicial activism.
The result, Forsthoff argued, was a gradual “deformalization” of the Constitution. Constitutional law lost its character as a set of formal legal rules and became increasingly value-driven. Inevitably this shifted power away from the constitutional legislature and toward the Federal Constitutional Court itself.
Forsthoff was thinking above all of the expanding welfare state, which the Court increasingly justified through the doctrine that the fundamental rights also imposed positive obligations on the state. Compared with the nineteenth century, this represented a profound transformation in the relationship between the state and civil society, with the two spheres increasingly overlapping. For that reason, the ideal-typical picture sketched above in connection with the United States—a restrained state confronting an autonomous civil society—applies to Germany only with important qualifications. Unlike the Anglo-American bourgeoisie, the German bourgeoisie never succeeded, through revolution, in making itself the bearer of public authority.
In the field of free speech, this more “substantive” understanding of the Constitution found a particularly important modern expression in the Federal Constitutional Court’s 2009 Wunsiedel decision. Here freedom of speech—despite being described as “constitutive, in the strictest sense, of the free democratic order”—ultimately had to give way.
The case arose from a constitutional complaint brought by the neo-Nazi Jürgen Rieger. Since 2001, Rieger had organized annual demonstrations in the Bavarian town of Wunsiedel to commemorate Nazi commander Rudolf Hess (1894-1987). The Court was asked to decide whether Section 130(4) of the Criminal Code, added by the legislature in 2005 specifically in response to these Hess commemorations, was compatible with the Basic Law. The provision makes it a criminal offense publicly or at a public assembly to disturb the public peace “in a manner that violates the dignity of the victims by approving, glorifying, or justifying the National Socialist regime of violence and arbitrary rule”.
Under Article 5, Section 2 of the Basic Law, freedom of speech may be restricted only by “general laws”—that is, laws that do not single out particular viewpoints for suppression. The decisive question, therefore, was whether Section 130(4) qualified as such a general law.
The answer would appear to be no, and the Constitutional Court explicitly said as much. The Section 130(4) provision is not viewpoint-neutral. On the contrary, it is directed at suppressing one specific political position: the glorification of National Socialism. By ordinary constitutional standards, Section 130(4)—and, by the same reasoning, Section 130(3), introduced in 1994 to criminalize Holocaust denial—constitute Sonderrecht: special legislation directed against a particular viewpoint, and which is therefore unconstitutional under the general principles governing freedom of speech.
The provision is not viewpoint-neutral. On the contrary, it is directed at suppressing one specific political position: the glorification of National Socialism.
Why, then, did the Court nevertheless uphold Section 130(4) as constitutional? Its answer was as follows:
“In light of the unparalleled injustice and terror that the National Socialist regime inflicted upon Europe and large parts of the world—crimes that defy ordinary legal categories—and in view of the Federal Republic of Germany’s founding as the antithesis of that regime, Article 5(1) and (2) of the Basic Law contains an exception, inherent in its own meaning, to the prohibition on viewpoint-specific legislation insofar as laws are concerned that restrict the propagandistic approval of the National Socialist regime between 1933 and 1945”.
Here the Federal Constitutional Court’s longstanding anti-positivist tendency reaches its logical culmination.
Formally, the Court maintains that this exception is immanent in Article 5—that it can be derived from the provision itself through constitutional interpretation. But the decision’s appeal to the founding of the Federal Republic as a conscious counterproject to National Socialism reveals what is really at stake. The Court is invoking a source of constitutional authority that is nowhere explicitly stated in the Basic Law and, indeed, could scarcely be reduced to a legal rule in the first place.
The argument runs as follows. Article 5 explicitly provides that freedom of speech may be restricted only by general laws. Yet the Basic Law rests on a prior political decision: the determination to found a political entity that would stand in every respect opposed to National Socialism. That founding commitment, the Court argues, defines the meaning of Article 5 itself. Where the text and that commitment come into conflict, the latter prevails. It therefore follows that the constitutional ban on viewpoint-specific legislation must admit an exception for laws prohibiting Nazi propaganda and the glorification of the Nazi regime.
Article 5 explicitly provides that freedom of speech may be restricted only by general laws. Yet the Basic Law rests on a prior political decision: the determination to found a political entity that would stand in every respect opposed to National Socialism.
This is an ambivalent line of reasoning.
On the one hand, the decision deserves credit for acknowledging the exceptional character of the prohibition instead of pretending—through strained legal interpretation—that Section 130(4) somehow qualifies as a “general law”. Such an approach would arguably have done greater damage to the constitutional principle than openly recognizing an exception.
In taking this line, moreover, the Court recognizes something that strict legal positivism has difficulty accounting for: every written legal order ultimately depends for its authority on a political founding act that necessarily transcends the text of the law itself.
In this respect, the Court’s reasoning remains historically concrete. Rather than appealing to vague universal values, it points to the specific historical view that the Federal Republic was founded as an anti-Nazi state—largely, one might add, thanks to of the American occupation authorities.
At the same time, however, the Court’s willingness to set what it regards as the Constitution’s underlying purpose against its actual wording—even if justified in this particular case—carries an obvious danger. Once judges are released from the discipline of the constitutional text, they acquire broad discretion to advance political preferences clothed in the language of constitutional principle.
What Do We Still Need Free Speech For?
A passage from Friedrich Merz’s speech at this year’s Munich Security Conference illustrates that danger. Alluding to J.D. Vance’s appearance at the conference a year earlier—which had left many Europeans surprised and unsettled—the German chancellor began by observing that “a gulf, a deep divide, has opened up” between Europe and the United States.
He then tried to explain the nature of that estrangement while affirming Europe’s sense of itself and its willingness to defend its own political identity. The first point he made was this: “The culture war of the MAGA movement in the United States is not ours. Here in Europe, freedom of speech ends where speech turns against human dignity and the Basic Law”.
Given that the “we” in Merz’s speech actually refers to the European Union, it is already somewhat odd that he suddenly invokes Germany’s Basic Law. More striking still is his claim that Europe’s defining characteristic is a limit on free speech that Germany’s own Constitutional Court has never recognized.
More striking still is Friedrich Merz’s claim that Europe’s defining characteristic is a limit on free speech that Germany’s own Constitutional Court has never recognized.
Under existing German constitutional doctrine, even fundamental criticism of the state and the Constitution is explicitly protected. Free speech does not, at least for now, end “where speech turns against human dignity and the Basic Law.” Whether a future generation of judges—one politically shaped by the era of the “fight against the right”—will see matters differently remains to be seen.
A value-based model of state activism rooted in German constitutional doctrine is also likely to gain momentum at the European level. The European Court of Justice recently ruled, for the first time, that a Hungarian law concerning LGBTQ+ issues violated the European Union’s fundamental values as set out in Article 2 of the Treaty on European Union.
The same tendency of value weaponization, this time directed not against member states, but against EU citizens, is evident in the Union’s expanding use of sanctions against individuals accused of helping destabilize Europe by disseminating Russian state propaganda. The Council of the European Union placed two such individuals on its sanctions list in 2025: the German-Turkish media activist Hüseyin Doğru, whose strong “anti-imperialist” and anti-Zionist agitation had apparently received Russian financial and organizational support for at least part of the period in question, and Jacques Baud, a former officer in Swiss intelligence.
The consequences are severe. Those sanctioned are barred from traveling within the European Union, their assets are frozen, and third parties are prohibited from maintaining commercial relations with them or providing financial support.
One need not be an ultraliberal who opposes on principle every politically motivated exercise of state power to find this troubling. The use of foreign-policy sanctions against perceived domestic enemies reaches deeply into the sphere of private autonomy. Moreover the selection of those targeted appears arbitrary. Even if these individuals did in fact receive Russian funding, it is far from obvious why their activities should be considered more destabilizing than those of ideological sympathizers who spread the very same messages without pay. Taken together, such measures suggest a disquieting willingness to treat the rule of law—ironically itself one of the European Union’s foundational values under Article 2—as negotiable, provided the costs fall on the “right” people.
One need not be an ultraliberal who opposes on principle every politically motivated exercise of state power to find this troubling. The use of foreign-policy sanctions against perceived domestic enemies reaches deeply into the sphere of private autonomy.
Resistance to these and similar forms of value-based authoritarian overreach is therefore entirely welcome. Yet those who oppose them should likewise resist the temptation to fetishize free speech itself. Properly understood, freedom of speech is first and foremost a formal constitutional liberty. The more important question lies beyond the law: What do we still need free speech for?
During the bourgeois age, freedom of speech was certainly considered an end in itself, insofar as it expressed the inalienable dignity and autonomy of the individual. But it was valued even more as the indispensable precondition for something else: a process of social progress, led by a liberal elite and driven by the persuasive force of reasoned argument. The hope was that public enlightenment would gradually transform society into a more rational and humane order—one in which the claims of the individual could finally be fully realized.
History, however, has done much to undermine that hope. The liberal ideal that enlightenment would progressively reconcile the individual with society has lost much of its credibility—and precisely there lies the blind spot of contemporary liberal idealism. Its critique of state restrictions on speech which are enacted in the name of combating hate speech is often persuasive. But its calls for a vibrant “culture of debate” are strikingly ahistorical, ignoring the fact that the social conditions that once sustained such a culture have steadily eroded, while serious attempts to justify its historical purpose by actually engaging with anti-liberal arguments have become exceedingly rare.
Ironically, calls for greater freedom of speech are gaining unusual traction in Germany at precisely the moment when the liberal consensus that long united both major political camps in the United States is beginning to fracture. Once again, Americans are debating the relationship between the State and truth.
One prominent participant in that debate is the constitutional scholar Adrian Vermeule. As part of the broader post-liberal movement, Vermeule argues in his 2022 book Common Good Constitutionalism that constitutional interpretation should move beyond both progressive living constitutionalism and conservative originalism. Instead, he proposes a return to a pre-liberal Western legal tradition in which constitutional law is understood as necessarily oriented toward objective ends—and ultimately toward the common good as the highest substantive political value.
Vermeule proposes a return to a pre-liberal Western legal tradition in which constitutional law is understood as necessarily oriented toward objective ends—and ultimately toward the common good as the highest substantive political value.
Methodologically, this entails a rejection of legal positivism in favor of interpreting written law in light of broader principles of justice rooted in the Western legal tradition. In terms of practical application, it leads Vermeule to advocate, among other things, a less libertarian conception of free speech.
This Catholic-inflected substantive constitutionalism seeks to revive one of the oldest themes in political philosophy, stretching back to Plato: the ideal of rational rule. Against what he sees as the ideological absolutization of the atomized individual, Vermeule insists that politics must once again concern itself with substantive goods rather than taking refuge in procedural neutrality.
Vermeule’s project is only one example of a broader trend. Across the West, dissatisfaction with the liberal-democratic order has grown steadily since the end of the Cold War, even as that order has attempted to defend itself with increasing ideological rigidity. At the opposite end of the political spectrum, circles surrounding France’s Invisible Committee have drawn radically different conclusions. Rejecting liberalism just as decisively as their conservative counterparts, they seek to abandon conventional politics altogether. Rather than contesting public opinion within an increasingly digitalized bourgeois public sphere, they advocate forms of clandestine association grounded solely in uncompromising opposition to the existing order.
For those who still wish to preserve the bourgeois ideal of individual freedom realized through and mediated by social institutions, neither of these alternatives can be ignored. Instead of endlessly repeating the same reassuring liberal formulas, as though they were protective incantations, or else rallying behind a new culture war slogan every few weeks, it is long past time to confront these competing visions seriously and reflect on what they reveal about the dismal condition of liberal democracy.
