Freedom of Association and Assembly / Protests, Political Expression
Microtech Contracting Corp. v. Mason Tenders District Council of Greater New York
Closed Mixed Outcome
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The Saxon Higher Administrative Court in Germany has ruled that election posters with the text “Hang the Greens!” must be taken down, because they violated the human dignity of members of the Green Party of Germany and incited hatred against them. The German extreme right-wing party “Der III. Weg” put up green colored election posters in the area of the city of Zwickau, prior to the German federal elections in September 2021. The upper half of the poster said “Hang the Greens!”, in big capital letters. Below this, written in very small font size was “Make our national revolutionary movement known in the city and countryside through poster advertising in our party colors.” The city of Zwickau ordered the party to take down the posters on the ground that they could be understood as an incitement to hang members of the Green Party of Germany. An application for interim relief by the party “Der III. Weg” against this order of the city administration was partially successful before the Administrative Court of Chemnitz. The Chemnitz Court mainly argued that from an objective viewpoint, the posters were a prompt to hang more green election posters of the party. On appeal, the Saxon Higher Administrative Court found that Zwickau’s order to take the posters down was permissible, because the posters posed a threat to public safety. The Court recognized that the freedom of expression under Art. 5 of the German Basic Law also guarantees the right to express criticism in an exaggerated and polemical form, especially in the political battle of opinions. However, the inscription “Hang the Greens!” clearly referred to members of the Green Party and was capable of disturbing the public peace by inciting hatred and by attacking the human dignity of the members of the Green Party. The text in significantly smaller font size below the inscription did not change this assessment, as it could not be easily read by the majority of the viewers. Since the poster constituted a punishable incitement pursuant to the German Criminal Code, the party’s freedom of expression had to be restricted for the protection of public safety.
For the federal election of Germany on September 26, 2021, the extreme right-wing party “Der III. Weg” (The Third Path) put up election posters in the area of the city of Zwickau prior to the election. In accordance with the party’s colors, the election posters were designed in green. The upper half of the poster was filled with the inscription “HANG THE GREENS!” (HÄNGT DIE GRÜNEN!). In the lower part of the posters, there was a slogan with the wording “Vote German!” (Wählt Deutsch!) and the following sentence written in smaller letters: “Make our national revolutionary movement known in the city and countryside through poster advertising in our party colors.” The capital letters of this slogan were two centimeters high.
On September 9, 2021, the city of Zwickau ordered that “Der III. Weg” had to remove the election posters with the phrase “Hang the Greens!” from all public areas within the municipal area of Zwickau The city of Zwickau ordered the immediate implementation (sofortige Vollziehung) of this order. The reason for the order was the ambiguity of the slogan “Hang the Greens!”. This slogan could be understood either as an incitement to hang members of the party “Bündnis 90/Die Grünen” (hereinafter Green Party) or as a prompt to hang more green election posters of the party “Der III. Weg”. The city based its order on the blanket clause for police action in § 12 of the Saxon Police Authorities Act (Sächsisches Polizeibehördengesetz). It argued that the election posters with the inscription “Hang the Greens!” constituted a public incitement to commit criminal offenses pursuant to Section 111 of the German Criminal Code (Strafgesetzbuch, StGB) as well as a public nuisance in violation of Section 118 of the German Act on Regulatory Offences (Ordnungswidrigkeitengesetz, OWiG), as the posters endangered public safety and public order. The design of the poster as well as the locations where the election posters had been hung clearly showed that the call to “Hang the Greens!” was meant seriously, because the sentence written in smaller letters was not designed to actually be read and election posters had been deliberately placed above election posters of the Green Party.
On September 10, 2021, the “Der III. Weg” applied for interim relief to the Administrative Court Chemnitz (Verwaltungsgericht Chemnitz). The party alleged that the order of Zwickau violated its right to freedom of expression under Art. 5 (1) of the German Basic Law (Grundgesetz, GG) and its right to equal participation in political competition under Art. 21 and Art. 3 (1) of the GG. It argued that public safety was not endangered and the slogan was not punishable under criminal law, because there was no incitement to commit a criminal offense. According to the wording “Make our national revolutionary movement known in the city and countryside through poster advertising in our party colors!”, the party recognizably did not call for hanging people, but for hanging posters. In regard to Zwickau’s claim that the party deliberately chose such a small font size, so that this part of the text would not be read, it stated that this clearly was not true. This was proven by the fact that the specifying text was at least visible to the average viewer, even if he or she could not read it clearly from a distance. Therefore, it was obvious to the objective observer that the poster’s message was not limited to the inscription “Hang the Greens!”. Furthermore, the order could not be based on the risk of a violation of “public order”, because the case law of the Federal Constitutional Court would bind measures like in the present case to the limits of the Art. 5 (2) of GG. This article reads: “These rights shall find their limits in the provisions of general laws, in provisions for the protection of young persons and in the right to personal honour.” Therefore, “public order” would not constitute a limitation to the freedom of expression guaranteed under Art. 5 (1) GG.
On September 13, 2021, the administrative court ordered that the posters with the inscription “Hang the Greens!” had to be hung at a distance of at least 100 meters from election posters of the Green Party, or otherwise it would reject the application. The court held that the election posters were value judgments covered by the freedom of expression pursuant to Art. 5 (1) of GG. This also included the right to express oneself critically “in the political battle of opinions – even in an exaggerated and polemical form” [para. 26]. Applying an objective standard of interpretation which includes the wording as well as the context and circumstances of the expression, the court concluded that the posters of “Der III. Weg” were a mere call to hang election posters for the party. On the basis of a balancing of interests, the court found it appropriate that the election posters in question were hung at a minimum distance of 100 meters from election posters of the Green Party. This would ensure that the posters of “Der III. Weg” were “spatially detached from the election advertising of the [Green] party” and “can be fully read and perceived in terms of content” [para. 29]. The Court found that the meaning and impact of the phrasing on the posters, and whether it could lead to incitement, would have to be determined in the main proceedings.
The city of Zwickau and the party “Der III. Weg” both appealed to the Higher Administrative Court of the state Saxony (Sächsisches Oberwaltungsgericht). The applicant “Der III. Weg” asserted that the proximity to posters put up by the Green Party was irrelevant, because the wording unambiguously expressed that posters and not people are to be hung. The order by the Administrative Court to hang the posters at a distance of at least 100 meters from election posters of the Green Party was disproportionate; at most a radius of five meters would be sufficient. Moreover, the message of the poster could not be reduced to the “eye-catcher” heading. Like in a usual marketing approach, this was to encourage a casual observer to read the more detailed text as well.
The Sixth Senate of the Saxon Higher Administrative Court delivered its per curiam decision in the interim relief proceedings on September 21, 2021.
The main issue before the Court was whether the posters of the party “Der III. Weg” were a threat to public safety. The concept of “public safety” includes “the protection of central legal interests such as life, health, freedom, honor, property and assets of the individual as well as the integrity of the legal system and state institutions, whereby a threat to public security is generally assumed if a punishable violation of these protected interests is impending” [para. 18].1 For this purpose, the Court laid out that the election posters were principally protected by the right to freedom of expression under Art. 5 (1) of GG, which also included the right to express criticism in an exaggerated and polemical form. However, according to Art. 5 (2) of GG, the freedom of expression was limited inter alia by the criminal laws, e.g. Sections 185 ff. StGB (insult, defamation), Sec. 111 StGB (public incitement to commit criminal offenses) or Sec. 130 StGB (incitement of the people). Hence, a removal of election posters was permitted, if they violated general criminal laws. The public interest in preventing threats to public safety and order regularly outweighed the interest of the party and its supporters in expressing their opinion and competing in elections against other parties. With regard to the criminal offense, an intent or culpability was not required for the purposes of preventive police law.
Firstly, regarding the interpretation of the election posters, the Court provided that “the objective meaning of a statement has to be determined, based on the understanding of an unbiased and reasonable audience. However, the subjective intention of the person making the statement and the subjective understanding of those affected by the statement is irrelevant” [para. 22].2
Based on the following, the Court determined whether the election posters were ambiguous: It held that the “vast majority of passers-by and car riders, who perceive the poster, only see the lettering ‘HÄNGT DIE GRÜNEN!’, ‘Wählt Deutsch!’ and ‘DER DRITTE WEG”, whereby the lettering ‘HÄNGT DIE GRÜNEN!’ clearly dominates in terms of size and design and remains in the memory” [para. 23]. Conversely, the small lettered sentence in the lower part would not be perceived by the vast majority of people (“Make our national revolutionary movement known in the city and countryside through poster advertising in our party colors.”). The Court assumed that the vast majority of passers-by and car riders who see the poster will relate the statement to members of the Green Party, as the color green was attributed to this party and the party name itself contained the wording “The Greens”. Most people were not aware that “Der III. Weg” also uses green as the party color green, and further the party is not referred to as “The Greens”. As a consequence, the average viewer of the poster “will only relate the lettering to the members of the [Green Party], but not to other green-colored posters of the applicant itself, because this association is far-fetched without the small printed subtext” [ibid.]. Moreover, the “affixing of election posters is regularly referred to as ‘sticking posters’ or ‘hanging up posters’, but is not associated with a color and the verb ‘to hang’.” [ibid.] Therefore, the Court concluded that the election posters were not ambiguous.
Secondly, the Court had to determine whether the showing of the posters clearly constituted an incitement of popular hatred within the meaning of Sec. 130 (1) of StGB, which reads:
“(1) Whoever, in a manner which is suitable for causing a disturbance of the public peace,
The Court held that the inscription “Hang the Greens!” referred to members of the Green Party, thus a section of the population. The inscription expressed that the “right of life of persons belonging to this section of the population is denied […], which means that these people are considered to be unworthy and indignant of life” [para. 30]. Furthermore, it expressed a “hostility towards the members of the party […] The Greens in such a way that it has a lasting effect on the senses and feelings of others” and promoted “hostile attitudes that go beyond mere rejection or contempt” [ibid.]. The posters were capable of threatening public safety by increasing feelings of aggression as well as “poisoning the political climate”. The Court clarified that “in individual cases acerbity and exaggeration of the public debate or use of freedom of expression, which cannot contribute to the proper formation of opinion, are to be accepted” [para. 33] (Citing BVerfG, 1 BvR 103/77 (05/13/1980), juris-para. 29). Notwithstanding, a restriction of the freedom of expression was possible with regard to the human dignity, if “persons are denied their right to life as equal personalities and are treated as inferior beings […]. Human dignity cannot be weighed up to freedom of expression“ [ibid.]3 The Court concluded that the inscription “Hang the Greens!” was not a statement permitted within the framework of freedom of expression, but rather amounted to the creation of a threat to political and social peace. Therefore, the election posters of “Der III. Weg” obviously constituted an incitement of masses pursuant to Sec. 130 (1) no. 1 and no. 2 of StGB, as these incited hatred against sections of the population and violated the human dignity of a section of the population by insulting and maliciously disparaging them.
The Court left open whether the election posters violate the (objective) criminal offense under Sec. 111 of StGB. According to this Section, a person that successfully or unsuccessfully incites the commission of an unlawful act publicly, in a meeting or by disseminating material, is punishable. The Court held that in literal understanding, the inscription “Hang the Greens!” could be understood as an incitement for murder. However, a figurative understanding of the poster would be a disparagement of the party and its members in the political battle of opinions and not a concrete incitement to commit criminal offenses.
Conclusively, the Court clarified that “Der III. Weg” also retains the option to place other forms of visual advertising. It stated that “[i]n view of these circumstances and the short time remaining until the end of the election campaign, […] the disadvantage associated with the non-issuance of an interim injunction – also taking into account the right of the parties to present their political objectives and contents to the outside world also with differently designed advertising materials – is minor in the present case” [para. 37].
Therefore, the election posters of “Der III. Weg” constituted an (objective) incitement of masses and a threat to public safety. Despite the limits posed to the applicant’s freedom of expression, the order to remove the election posters was permissible.
The appeal of the city of Zwickau was successful. The decision in the interim relief proceedings is final.
Citing BVerfG, 1 BvR 233/81 (05/14/1985), juris-para. 77 ↩
Citing BVerfG, 1 BvR 1476/91 (10/10/1995), juris-para. 124f.) In agreement with the lower court, the interpretation includes an assessment of the wording as well as the context and circumstances of the expression. For the case of ambiguous statements, a punishable meaning “may only be attributed to the statement if all possible meanings without sanctions have been excluded with conclusive reasons” [ibid.]. ((Citing BVerfG, 1 BvR 40/86 (04/19/1990), juris-para. 32ff. ↩
Citing BVerfG, 2 BvR 2179/09 (09/24/2009), para. 11 and 16 ↩
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Court clarified that the freedom of expression is limited, if the expression poses a threat to public safety. Public safety is endangered especially if the (objective) elements of a criminal offense are fulfilled, e.g. when the human dignity of sections of the population is violated and hatred is incited against sections of the population. The decision is also relevant with regard to the legal standards applied to the interpretation of – more or less – ambiguous expressions.
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