Freedom of Association and Assembly / Protests, Political Expression
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The Federal Constitutional Court of Germany held that a Federal Minister violated a political party’s right to equal opportunities in political competition by using derogatory statements in a press release published on the ministry’s official website. After an opposition party had organized a demonstration, the Minister had published the press release associating the opposition party with right-wing extremism and radicalization of society and calling on people to stay away from the demonstration. The Court ruled that the right to equal opportunities of political parties under article 21(1) German Basic Law requires state organs to observe the principle of state neutrality, and that the negative description of the party’s event by the minister could negatively influence the behaviour of potential participants in the event. The Court held that the press release contained impermissible defamatory statements that one-sidedly influenced the political competition to the detriment of the party and that the press release therefore violated the party’s right to equal opportunities under art. 21(1) German Basic Law.
On November 7, 2015, the German political party, “Alternative for Germany” (Alternative für Deutschland, AfD), organized a public assembly under the motto “Red Card for Merkel! – Asylum needs borders!”. In response to the organization of this assembly, on November 4, 2015, the Federal Minister of Education and Research, Johanna Wanka, published a press release on the website of her ministry (www.bmbf.de) stating: “Red Card for the AfD, Johanna Wanka on the planned demonstration of the AfD in Berlin on 07.11.2015, The red card should be shown to the AfD and not to the Chancellor. Björn Höcke and other spokesmen for the party are encouraging radicalization in society. Right-wing extremists who openly incite the people, like Pegida leader Bachmann, thus receive intolerable support.”
On November 7, 2015, AfD successfully obtained a preliminary order from the Second Senate of the Federal Constitutional Court (Bundesverfassungsgericht) that Wanka temporarily remove the press release from the homepage of the Federal Ministry. Wanka complied with the Court’s order.
The Second Senate of the Federal Constitutional Court delivered a unanimous decision. The central issue for the Court’s determination was whether the minister’s press release violated the AfD’s right to equal opportunities in political competition.
The AfD sought a declaration that the press release violated its right under article 21(1) German Basic Law (Grundgesetz, GG) to equal participation in political competition and to freedom of assembly under article 8(1) GG. It argued that Wanka “had used the homepage of her ministry, which was available to her due to her government office and the use of which was naturally closed to political competitors, to publish the press release in question” [para. 11]. The party submitted that the minister had to observe the requirement of state neutrality (Neutralitätsgebot), because “the use of the homepage of the Ministry is sufficient to publicly create the legal appearance of a claim to the official authority of the government office” [para. 12]. The AfD submitted that the minister’s press release did not constitute factual information on political events of interest to the public because her statements had been aimed at defaming the AfD and they created the impression that the AfD promoted serious crimes committed by right-wing extremists which would criminalize the AfD and its members in the public eye. The party argued that it was not relevant whether or not the statements took place during an election campaign because the “participation of political parties in the formation of political will is not limited to elections to the Bundestag” (German federal parliament) [para. 18], but also takes place in state and communal elections as well as in the elections to the European Parliament. It maintained that a discriminatory statement by a member of the government constituted a serious disadvantage for the AfD party even outside an election campaign for the Bundestag and as the minister could potentially use the ministry’s official website to call for a boycott of future assemblies of the party in the future, the party had a substantial interest in obtaining a decision.
The minister argued that since the statement had been published outside an election campaign period she did not have to observe the AfD’s right to equal opportunity and the requirement of state neutrality as those only applied to the targeted influence of state organs on the formation of the will of the people during and in the run-up to elections. She submitted that even if her statement encroached on the right to equal opportunity she had not violated it, because within the Federal Government’s authority to manage the state she had the right to provide information and to maintain public relations. Wanka argued that she had a “right to counter-attack” (Recht auf Gegenschlag) and in the exercise of her ministerial office she had rejected a public attack on the policies of the federal government with comparable means.
The Court held that the AfD could not directly challenge a violation of its right to freedom of assembly under article 8 GG, because in Organstreit (adversarial) proceedings under article 93(1) No. 1 GG, “political parties can only assert rights resulting from their particular status under constitutional law” [para. 31]. Since the political parties’ mandate to participate in the formation of the political will under article 21(1) included the protection of their right to organize and advertise political assemblies,“the alleged violation of a fundamental right by another constitutional organ can be relevant in Organstreit proceedings only to the extent that the party thereby challenges a special treatment that violates the principles of freedom from interference by the state and of equal opportunities” [para. 31]. Accordingly, the only issue the Court had to determine was whether the minister’s press release violated the AfD’s right to equal opportunities in the political competition under article 21(1) GG.
Art. 21(1) states: “(1) Political parties shall participate in the formation of the political will of the people. They may be freely established. Their internal organisation must conform to democratic principles.”
The Court stated that article 21(1) reflects that political parties play a vital role in the free and open formation of the political will of the people, as required for democratic legitimation of elections. This role elevates political parties “to the rank of constitutional institutions” with a “specific function as mediators between state and society” [para. 41]. For the “open formation of the political will as required under constitutional law, it is indispensable that parties participate in political competition as equally as possible”, and so article 21(1) protects the equal rights and opportunities of political parties [para. 42]. This requires that state organs act neutrally in the competition of parties. The requirement of state neutrality also applies outside of election campaigns and covers “all activities of parties that are aimed at fulfilling their constitutional mandate” pursuant to article 21(1), “because the formation of political opinions is an ongoing process that is not restricted to election campaigns” [para. 46].
Given this background, the Court held that state organs encroach upon the right to equal opportunities and the principle of state neutrality, if they “use the announcement or organization of a political demonstration as an opportunity to take a one-sided stand on the demonstration or on the party organizing it” which is the case “if actions of state organs are intended to influence the organization of political demonstrations or the behaviour of potential participants” or “if state organs, on occasion of a political demonstration, pass negative or positive value judgments on the party organizing it” [para. 47ff]. The Court noted that as the organization of a political demonstration is a part of parties’ constitutional mandate under article 21(1), “any negative assessment of a political event that could have a deterrent effect and thereby influences the behaviour of potential participants in the event adversely affects the parties’ equal participation in the formation of political will” and therefore encroaches upon the right to equal opportunities within article. 21(1) [para. 48].
The Court held that the Federal Government’s inherent power to provide information and to maintain public relations did not exempt it from the obligation to observe the principle of state neutrality. It said that the Federal Government’s power “comprises the presentation and explanation of government policies regarding measures taken and future projects”, “adequate, objective information about issues immediately concerning citizens and about important matters, even if they are beyond or far prior to the government’s own policy-shaping activities”, which may include recommendations or warnings [para. 51]. However, the Court noted that because of the Federal Government’s authority and the state resources at its disposal it could strongly influence the formation of the political will of the people. The Court accepted that the Federal Government had the right to publicly refute attacks against its policy, but that when doing so it must observe the requirement of objectivity (Sachlichkeitsgebot). In this context, the Federal Government “may react to objections raised against its policies, rectify incorrect statements of facts, and refute unobjective attacks” but “is obliged under the principle of neutrality to refrain from statements in which it takes a one-sided stand to the benefit or detriment of individual political parties” [paras. 56 and 58].
The Court rejected Wanka’s argument that the Federal Government had a “right to counter-attack”, which would allow state organs to react to unobjective and defamatory attacks in kind. This was because that right “could have the consequence that the Federal Government would itself be entitled to disseminate incorrect information if its policies were attacked on the basis of incorrect statements” and under “the principles of neutrality and objectivity, the Federal Government may not exceed these limits by influencing political competition and the parties participating in it in an evaluative manner – even if its statements are mere reactions” [para. 60].
The Court held that these standards of neutrality applied to individual members of the government. Although it is not precluded that an individual minister participates in the political discussion outside of its public offices, it must be “ensured that means and opportunities connected with the government function that are not available to the political competitors will not be used” [para. 62]. To ascertain whether a particular statement of a minister was made in his or her official function must be determined according to the circumstances of each individual case. The Court explained that “government authority is relied on if office holders make official statements in the form of official publications, press releases or on the official website of their portfolio, or if state symbols and national emblems are used” [para. 66].
Applying these principles to the present case, the Court held that Wanka had acted in exercise of her governmental office as she had published her statement on the ministry’s official homepage using the ministry’s coat of arms and so had made use of resources which were available to her only in her function as a minister. The Court found that the press release contained “derogatory characterizations of the [AfD]”, specifically the references to right-wing extremism and radicalization of the society, which could “undermine the party’s position in the political debate” [para. 71]. The minister’s call to show a “Red Card” urged people “to distance themselves from the [AfD] and thereby one-sidedly influences political competition to the [AfD’s] detriment” [para. 71]. The Court also found that the press release was aimed at “influencing the behaviour of potential participants in the demonstration planned by the [AfD]” as “the claim to show such a party the ‘red card’ is at least an indirect prompt to stay away from the planned demonstration” [paras. 72 and 74]. For these reasons, the minister’s press release encroached upon the principle of state neutrality and was not justified by the minister’s power to provide information and refute attacks against governmental policy, because the press release neither “refutes criticism [about government actions] in an objective way” nor did it “contain any explanatory information on the actions of the Federal Government with regard to its refugee policies or another area of policy” [para. 78f.]. The Court stated that the press release “attacks the [AfD] in political competition by taking sides on the occasion of the announcement of a political demonstration” [para. 79].
Accordingly, the Court held that the minister had exceeded the permissible degree of its right to provide information with regard to the principles of neutrality and objectivity and that the minister’s press release violated the AfD’s right to equal opportunities in the political competition pursuant to article 21(1).
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Federal Constitutional Court’s decision limits the right of members of the government to express certain opinions and value statements in the context of their official governmental office, even if outside of election campaign times, if these have a negative effect on the equal opportunities of parties in the political competition.
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