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«Abstract In its present state, Article 166 StGB does not satisfactorily achieve its purpose of ensuring the effective enforcement of the ban on ...»

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Legal Limits of a Permissible Criticism of Religion

By Christian Hillgruber*


In its present state, Article 166 StGB does not satisfactorily achieve its purpose of ensuring

the effective enforcement of the ban on insulting of religious beliefs and religious

communities. This is largely because of the difficulty satisfying the “disturbance of the

public peace” requirement. In this paper, I first refer to the legal limits of the freedom of

opinion in consideration of religion and then argue with regard to Article 166 StGB that the disturbance of peace criterion ought to be eliminated because abuse of religion, in itself, already disturbs the public peace.

* Christian Hillgruber is a professor at the University of Bonn and holds a chair in public law.

266 German Law Journal Vol. 17 No. 02 A. No Guarantee of Freedom Without Boundaries All civilized people condemn the Paris attacks carried out by Islamic fanatics and mourn the victims. But, whether they are editors, journalists, caricaturists, policemen, or simply citizens of Paris, not everybody wants to identify with the affected satire magazine, Charlie Hebdo. Not everybody wants to “be Charlie.” Many of the caricatures in the magazine— not just the caricatures of Mohammed—are both provocatively critical of religion and, to a considerable extent, contemptuous of religion in a crude, even vulgar manner.

Whether or not someone finds the caricatures amusing is a question of good taste;

whether or not someone considers them a suitable method of religious criticism is a question of what one considers good style in a dispute. Whether or not the caricatures can be published, however, is a legal question. It is a question of the legal boundaries of freedom of opinion, freedom of press, and artistic freedom with regards to religion: Can satire, verbal, or visual, actually do anything? Can—or must—the state, in the interest of public peace, set legal limits that have to be respected even by an areligious and antireligious vanguard? And if so, which ones?

Legal limits on freedom of communication indisputably exist and, among lawyers, this is undisputed. No freedom is without restriction, not even the freedom of opinion and the freedom of press, despite their undoubtedly constitutive importance in a liberal democracy. In the Grundgesetz (GG), the freedom of opinion is subject to general legislation, general youth protection provisions, and the law of personal honor. In accordance with the European Convention on Human Rights, [t]he exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessa

–  –  –

Charlie Hebdo is a French satire magazine that describes itself as secular, political, and jubilant. Its editorial department was the target of terrorist attacks on January 7, 2015. For more information on Charlie Hebdo, see CHARLIE HEBDO, https://charliehebdo.fr/en/ (last visited Mar. 27, 2016).

The Grundgesetz is the Basic Law for the Federal Republic of Germany. It is the German constitution including fundamental rights and articles on state organization. It was approved on May 8, 1949 in Bonn and came into effect on May 23, 1949. GRUNDGESETZ FÜR DIE BUNDESREPUBLIK DEUTSCHLAND [GRUNDGESETZ] [GG] [BASIC LAW], May 23, 1949, BGBl. I (Ger.).

GG, supra note 2, at art. 5(2).

2016 Legal Limits of a Permissible Criticism of Religion 267

–  –  –

Even constitutional rights without explicit reservations of law—such as artistic freedom in Article 5(3) GG—can be limited for the sake of the freedom of others, but also to promote constitutional concerns for the greater common good.

After the Paris attacks, certain parties claimed that freedom of opinion, freedom of press, and artistic freedom are absolute and cannot be limited; this is clearly incorrect. Yet, what exactly are the limits concerning religion and religious feelings? There are great legal uncertainties in Germany, too, as seen in the demonstration of Islam-opponents (“Legida”) in Leipzig, where showing Mohammed caricatures was first banned by an administrative decision that was shortly after annulled.

The question is: What are the limits that the state—as constituted by the GG—can set on public expressions of opinion or artistic presentations of religion-critical, or even antireligious, communication by its secular legal system, without violating the constitutionally guaranteed freedom of opinion, freedom of press, artistic freedom, and the necessity of religious and ideological neutrality of the state?

B. Legal Limits of Freedom of Opinion in Consideration of Religion I. No Control of Quality and Level The protection of freedom of opinion, freedom of speech, and artistic freedom guaranteed by the GG does not depend on the quality of an opinion, the press medium, or the artwork. This is because this protection does not focus on the result of the exercise of European Convention on Human Rights, Nov. 4, 1950, art. 10(2) [hereinafter ECHR], http://www.echr.coe.int/Documents/Convention_ENG.pdf.

For more information, see Mohammed-Karikaturen bei “Legida”—Demo doch erlaubt, FRANKFURTER ALLGEMEINE ZEITUNG (Jan. 12, 2015), http://www.faz.net/aktuell/politik/inland/leipzig-erlaubt-mohammed-karikaturen-beilegida-demo-13365659.html; Leipzig Lifts PEGIDA Charlie Hebdo Caricature Ban, DW.COM (Jan. 12, 2015), http://www.dw.com/en/leipzig-lifts-pegida-charlie-hebdo-caricature-ban/a-18186190.

Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court], Mar. 23, 1971, 30 Entscheidungen des Bundesverfassungsgerichts [BVerfGE] 336 (347) (Ger.); Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court],, Mar. 14, 1972, 33 Entscheidungen des Bundesverfassungsgerichts [BVerfGE] 1 (14 f.) (Ger.);

Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court], June 22, 1982, 61 Entscheidungen des Bundesverfassungsgerichts [BVerfGE] 1 (7) (Ger.); Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court], Oct. 9, 1991, 85 Entscheidungen des Bundesverfassungsgerichts [BVerfGE] 1 (15) (Ger.);

268 German Law Journal Vol. 17 No. 02 freedom, the expressed or disseminated opinion, or the art created, but rather on the exercise of freedom itself—the freedom to form and articulate an opinion or to engage in art. The state is not permitted to assess this expression of freedom as right or wrong. The recognition of this freedom must be independent from state-run regulation or control of content.

As an unavoidable consequence of any constitutional guarantee of freedom, the constitutional freedom of opinion, freedom of press, and artistic freedom protect inferior—even worthless and incorrect—exercise of the respective freedom. Wherever freedom is guaranteed, it cannot be restricted to the good and beautiful, in whatever way defined.

The state must not restrict freedom of opinion, freedom of press, or artistic freedom because of the inadequate quality, the moral abjection, or the blasphemous character of the product. But, the state can—and must—intervene if the expression of opinion, the press product, or the artwork is either actually harmful to third-party rights or the public good, or if there is a reasonable probability of such harm. Acts that are aesthetically repulsive or merely leave a harmful mental impact, however, are relatively immune from restriction. Thus, according to the definition above, the exercise of the freedoms of communication must not be socially damaging or peace disturbing.

Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court], Oct. 10, 1995, 93 Entscheidungen des Bundesverfassungsgerichts [BVerfGE] 266 (289) (Ger.).

It is irrelevant whether the expressed opinion is wrong or right, worthless or absurd, rational or emotional, unfounded or even derogatory. Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court], Mar. 14, 1972, 33 Entscheidungen des Bundesverfassungsgerichts [BVerfGE] 1 (15) (Ger.); Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court], May 11, 1976, 42 Entscheidungen des Bundesverfassungsgerichts [BVerfGE] 163 (171) (Ger.); Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court], Oct. 9, 1991, 85 Entscheidungen des Bundesverfassungsgerichts [BVerfGE] 1 (15) (Ger.); Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court], Oct. 10, 1995, 93 Entscheidungen des Bundesverfassungsgerichts [BVerfGE] 266 (289) (Ger).

Freedom of opinion as guaranteed by Article 5(1) GG finds its limits according to Article 5(2) GG in general legislation, general youth protection provisions, and the law of personal honor. Additionally, constitutional limits inherent in the Basic Law may also restrict the freedom of opinion. For the concept of practical concordance, see Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court], Jan. 25, 1984, 66 Entscheidungen des Bundesverfassungsgerichts [BVerfGE] 116 (136) (Ger.); Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court], June 23, 2004, 111 Entscheidungen des Bundesverfassungsgerichts [BVerfGE] 147 (157) (Ger.).

For the freedom of opinion, compare with Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court], Nov. 4, 2009, 124 Entscheidungen des Bundesverfassungsgerichts [BVerfGE] 300 (320 f.) (Ger.) For the artistic freedom, Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court], June 3, 1987, 75 Entscheidungen des Bundesverfassungsgerichts [BVerfGE] 369,(377) (Ger.).

2016 Legal Limits of a Permissible Criticism of Religion 269

II. Protection of Religious Feelings?

There is no doubt that the religious freedom of others can also limit artistic freedom. The question to consider is: Is the freedom of religion affected, or even violated, if religious feelings are hurt by blasphemous expressions of opinion or art? If so, is the freedom of religion then affected and can the freedom of speech under these circumstances be restricted to ensure freedom of religion?

Religious sentiment per se is not a legal asset constitutionally protected from violation by private third parties. Article 4 GG contains a guarantee of the freedom of religion—not a guarantee of protection of religion itself. Under a constitutional order, where the state provides space for different religious beliefs and ideologies by a constitutionally guaranteed freedom, there can—in principle—be no right of theists or religious people to be spared from confrontation with atheism. That also applies to the artistic expression of such opinions. No one can constitutionally claim that one’s religious conviction and moral beliefs remain verbally and visually unchallenged and unaffected, and therefore that they must not be questioned or negated by artistic interpretation and representation.

Regarding this, the Bundesverfassungsgericht (the Federal Constitutional Court of

Germany) stated:

–  –  –

The freedom of belief and religious denomination, therefore, does not shield personal religious feelings from provocations by foreign opinions or art. The constitutionally guaranteed freedom of religion and ideology generally also gives a right to challenge, if not disrespect, foreign beliefs one considers superstitious or plainly incorrect. For example, that is why non-Muslims are not bound by the Islamic command of not portraying the GG, supra note 2, at art. 4.

Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court], Nov. 4, 2009, 124 Entscheidungen des Bundesverfassungsgerichts [BVerfGE] 300, para. 54.

270 German Law Journal Vol. 17 No. 02 Prophet. Mohammed cartoons, just like other opinions or artworks that supposedly negate god or criticize religion, do not trigger constitutionally guaranteed state protection from attacks on religious beliefs.

Religious feelings are subjective, and therefore, providing legal protection would subjectivize the abstract, general, and objectivized imperatives of legal order in an unacceptable way. If one focused on the degree by which someone feels affected by antireligious speech, the need for, and the grant of, protection would more or less depend on the affected person’s own degree of religious sensibility and sensitivity.

III. Protection of the Religious Identity?

No one has to tolerate his or her own personal disparagement. The general right of personhood gives the individual a social claim to validity and respect that has to be accepted by third parties. If a human being’s dignity is encroached—which can also occur through a caricature—this limit is absolute. As already noted in an injunctive process, the photomontage on the front page of Titanic, a satirical magazine, in 2012 showing Pope Benedict XVI as incontinent and stained with feces, was evidently degrading and, thus, dishonoring, regardless of his position as the head of the Catholic Church. Such a violation of the right of personhood through artistically embellished insults requires an actual reference to an individual person, her characteristics, and a resulting vilification.

According to the traditional reading of the right of personhood, the impersonal defamation of a religion is not included.

Now, it could also be considered whether the disparagement of a confession always has effect on the believer as a person, because many human beings’ identities are shaped by their religion. In this case, the defamation of their faith would affect the single believer;

the religious identity in itself, thus, would deserve an indirect “protection of honor” by prohibiting the abuse of religious denominations. After all, a human being’s religious beliefs are the specific expression of his dignity, which the constitution declares inviolable. The basis for this approach of a religious identity protection is an idea already The freedom of religion also includes the so-called negative freedom, meaning that everyone can decide not to have a religious belief and not to follow religious or ideological rituals. See Martin Morlok, Artikel 38— Wahlrechtsgrundsatze/Abgeordnete, in 1 GRUNDGESETZ KOMMENTAR (Horst Dreier ed., 2013), art. 4, para. 69.

RECHTSPRECHUNG DER OBERLANDESGERICHTE IN ZIVILSACHEN [OLGZ] [Higher Regional Court), July 10, 2012, 324 O 406/12 (Ger.).

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