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Freedom of Speech for Public Officials vs. the Political Parties' Right to Equal Opportunity: The German Constitutional Court's Recent Rulings Involving the NPD and the AfD
Published online by Cambridge University Press: 06 March 2019
Abstract
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Public Officials are bound by the fundamental rights when they are acting in their political function. Acting as such they cannot, in general, claim the freedom of speech for themselves as normal citizens do. If they give statements regarding other political parties they have to abide by the principle of neutrality. Statements that could be understood as negative will be — especially if they are made during the election process — a violation of the right of political parties to equal opportunity, which is an indispensable element of the free and open process of forming popular opinion. The delineation of whether a public official is appearing as such, as a “party politician” or “private individual” can, however, be difficult and it is the obligation of the public official to leave no doubt about the role he is exercising. Different from any other public official the Federal President needs not comply with the principle of neutrality. He has a broad margin of assessment and only transgresses his legal boundaries if he violates the integrative task of his office in an arbitrary manner.
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References
1 The author has provided more extensive analysis of these court rulings in German. See Kliegel, Thomas, Äuβerungsbefugnisse von Amtsträgern gegenüber politischen Parteien, in Linien der Rechtsprechung des Bundesverfassungsgerichts 413 (Scheffczyk & Wolter eds., 2016).Google Scholar
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6 An application to the Federal Constitutional Court may be filed if supreme federal organs, or actors that are equivalent to such organs, disagree on their respective rights and obligations under the Basic Law. This type of proceeding is necessary because the organs have no authority over each other. Organstreit proceedings make it possible for constitutional organs to judicially scrutinize each other's actions; thus, Organstreit proceedings protect political decision-making by enforcing the separation of powers.Google Scholar
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110 See Prohibition case, at para. 526.Google Scholar
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