Case Summary and Outcome

The Constitutional Court of Berlin held that a tweet published via the official Twitter account of the mayor of Berlin, Michael Müller, did not violate political party Alternative für Deutschland’s (AfD) right to the equal treatment of all political parties. The tweet contained a statement favoring demonstrations in favor of democracy, freedom, and against racism—which were organized in light of a political meeting of right-wing party AfD. The Court considered that the Twitter account was an official resource reserved for the mayor, and thus, it was attributable to the state. In consequence, its tweets must be party-neutral. However, as the tweet did not directly refer to the AfD, the Court considered it neutral and argued that it did not violate AfD’s rights.

Facts

On May 27, 2018, the German right-wing party Alternative für Deutschland (AfD), the applicant, hosted a political meeting for about five thousand participants in Berlin under the theme “Future for Germany – for freedom and democracy”. The event ended around 3:15 p.m.

On the same day, many other gatherings concerning anti-racism, solidarity, and anti-incitement —with around twenty-five thousand participants— took place. Some of them were explicitly AfD-critical or counter-assemblies.

Then-mayor of Berlin, Michael Müller, the defendant, published at 5:30 p.m., via his official Twitter (now X) account, the following statement “Tens of thousands on the streets in Berlin today, in front of the Brandenburger Tor and on the water. What an impressive signal for democracy, freedom, and against racism and hate speech. […]” He added a picture from one of the gatherings to the statement.

On June 11, 2018, the AfD initiated court proceedings against the mayor before the Constitutional Court of Berlin. The applicant held that the defendant, through his tweet, had violated its right to the equal treatment of all political parties, as protected by Art. 21 para 1 sent. 1 of the German Basic Law (Grundgesetz, GG).

Decision Overview

On 20 February 2019, the Constitutional Court of Berlin issued a decision on the matter. The main question for the Court was whether the defendant’s tweet—favoring demonstrations against racism and in favor of democracy and freedom, through the mayor’s official Twitter account—had violated the AfD’s right to the equal treatment of all political parties by breaching his obligation to remain neutral.

The applicant held that Müller had an obligation to remain neutral regarding other political parties and that he did not fulfill this duty since he had tweeted via the official Twitter account of the mayor of Berlin. As the Twitter account was maintained by his office, it was a governmental resource. Thus, strict neutrality duties would apply. Allegedly, the tweet in question had violated this obligation because it contained a negative judgment about AfD. By praising the counter-gatherings as an “impressive signal for democracy and freedom“ [p. 5], Müller had implied the AfD was not democratic, even without mentioning it explicitly in his tweet. This, the plaintiff said, would show “how subtle [official] press offices act” [p. 6] to bypass constitutional limits of government statements.

In his defense, Müller claimed that since Twitter was accessible to everyone for free, publishing something on the platform was not a privilege of members of the government. Thus, he was not using specific resources he had at hand because of his governmental authority, and was not obliged to remain neutral. Furthermore, he argued that he had not mentioned the applicant in his tweet. Therefore, his tweet was not aimed at devaluing the plaintiff’s political event, but at upholding the core values of a democratic society. Thus, even if he used official resources by publishing on his Twitter account, he had not violated his neutrality duties.

The Court rejected the defendant’s argument that he had not used his specific resources as mayor. Instead, referring to the Federal Constitutional Court of Germany, the Court said that political statements carry a special authority if they are made within the specific capacities available only to members of the government—for example when there is a recognizable reference to official functions (BVerfG, judgment of February 27, 2018 – 2 BvE 1/16). The Twitter account in question, for instance, refers explicitly to the “governing mayor of Berlin”, and is described as the “official account of the governing mayor of Berlin”. Moreover, this account is referenced in other official websites of the State Chancellery of Berlin. Hence, the Court concluded that on the aforementioned Twitter account, Müller had an obligation to remain neutral regarding other political parties.

The Court held, however, that Müller had fulfilled this obligation. According to the Court, the mayor’s tweet did not discriminate against AfD because the tweet’s wording did not mention the party. Instead, it emphasized the importance of fundamental constitutional values and aimed at affirming them as parts of social consensus. Also, the Court opined, Müller had only tweeted after the end of AfD’s gathering. According to the Court, to violate the right to the equal treatment of all political parties, the party must be either directly and immediately—or indirectly and unequivocally—affected by the statement.

Thus, the Court decided that Müller had not violated his obligation to remain neutral regarding other political parties and that there was no violation of the AfD’s right to the equal treatment of all political parties, as enshrined in Art. 21 para 1 sent 1 GG.