Gender Expression, Hate Speech
The Commissioner for Protection of Equality v. AA
Closed Expands Expression
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The Frankfurt Higher Regional Court in Germany ruled that polemical and exaggerated statements were protected by the freedom of expression and did not constitute a punishable insult. A former university professor of plant physiology and evolutionary biology, had been criminally charged after criticizing the equal status for same-sex marriages and a possible adoption right for same-sex couples. After the first instance court convicted the professor for insult, he successfully appealed the judgment and was acquitted. The prosecutor appealed the acquittal to the Higher Regional Court. The Court held that the professor’s statements were protected under freedom of expression as statements of opinion, and found that addressing a collective group rather than identifiable individuals did not have any impact on the personal honor of individual persons.
In 2017, a former university professor of plant physiology and evolutionary biology in the city of Kassel, Germany participated in an interview in which he discussed the introduction of new legislation granting equal status to same-sex marriages passed by the German Bundestag (Parliament). He put forward scientific theses in the interview, using biological terms and referring to a reference book of his as well as to the gender research of the psychologist John Money, which he criticized. In this context, the professor labelled homosexual couples as “a-sexual erotic duos without reproduction potential” born with a “wrong polarity” and warned of a possible “horror child molester scenario” in connection with adoption. He stated that “[s]hould adoption rights for man-man or woman-woman erotic unions come, I see state-sponsored pedophilia and severe child abuse coming our way” and that children born in lesbian partnerships and conceived through artificial insemination are “pitiful products of fertilization”. There were a number of complaints made following the interview.
He was criminally charged, and on August 3, 2020, the Kassel Local Court sentenced the defendant to a fine for insult.
The professor appealed and on March 2, 2021, the Kassel Regional Court acquitted the professor. The Regional Court held that the statements made by the professor were, in their entirety, statements of opinion on marriage for all and the right of homosexuals to adopt. In particular, the Court considered the factual assertions made by the defendant to be opinion-forming factors that are also protected by the basic right to freedom of opinion under Art. 5 German Basic Law (Grundgesetz, GG) and that could not be separated from the evaluative components of the statements without distorting the meaning of the statement. The Court concluded that since the professor’s statements merely addressed a collective as such and not individual members of a collective group, the statements did not have any impact on the personal honor of individual persons. It reasoned that a “disparaging statement must be linked to a characteristic that is present in all members of the collective, while the link to characteristics that apply to some, obviously not all members, does not diminish the personal honor of each individual member” [Headnote 3]. Accordingly, the Court held that the professor was not punishable under the German Criminal Code (Strafgesetzbuch, StGB) for insult (Sec. 185 StGB), malicious gossip (Üble Nachrede, Sec. 186 StGB), defamation (Sec. 187 StGB) or incitement of masses (Sec. 130 StGB).
On March 3, 2021, the public prosecutor’s office appealed to the Frankfurt Higher Regional Court.
The 2nd Criminal Senate of the Frankfurt Higher Regional Court delivered a unanimous decision. The Court had to decide if the Kassel Regional Court had correctly assessed if the professor’s statements were punishable under criminal law.
The Court found in agreement with the lower court that the professor’s statements did not refer to concrete persons and the persons disparaged by possible false factual assertions were not sufficiently specified. It reasoned that “neither homosexuals nor children living in same-sex partnerships are a delimitable and clearly manageable group”, especially “since most of the affected persons do not even know whether they have an (exclusively) homosexual disposition or whether they were possibly conceived through artificial insemination and grow up or have grown up in same-sex partnerships. Neither do the two groups stand out so clearly from the general public on the basis of certain characteristics that the circle of those affected is clearly demarcated” [p 4.] Therefore, the Court concluded that “neither homosexuals per se nor homosexuals living in partnerships or children growing up in lesbian partnerships (possibly conceived through artificial insemination) constitute an insultable group and that general value judgments that may be insultable or incorrect facts that may disparage a group do not affect the personal honor of the individual members of the group” [p. 3f.].
The Court assessed whether the professor’s statements were protected by the freedom of expression under Art. 5 German Basic Law (Grundgesetz, GG). In agreement with the Kassel Regional Court, it found that “the [professor’s] interview contains both factual and evaluative components, but that these are interconnected in such a way that they cannot be considered separately” [p. 4]. The Court noted that the fact that the professor was asked in the interview as an evolutionary biologist about his opinion on the “marriage for all” and put forward scientific theses using biological terms, referring to a reference book of himself and criticizing John Money’s gender research, can be seen as “opinion-forming factors for his evaluations” [p. 4]. In the interest of an effective protection of basic rights, the meaning of the professor’s statement may not be distorted by a separate consideration of expressions of opinion and expressions with a factual component. For this reason, the Court included all statements in the scope of protection of freedom of expression. Furthermore, it reasoned that the professor’s statements neither constituted formal insults nor defamatory criticism (Schmähkritik), excluded from the protective scope of Art. 5 GG. According to the Court, the statements “were rather a criticism of ‘marriage for all’ and a right of adoption for homosexuals, expressed in drastic and, in parts, distasteful terms, which is covered by the defendant’s freedom of expression and therefore not punishable” [p. 5].
The Court also agreed with the lower court that the professor’s statements did not impair the human dignity of homosexuals and children living in same-sex couples, which is afforded absolute protection under Art. 1 (1) GG. The Court held that the professor only denied same-sex couples the right to be treated in the same way as opposite-sex couples with regard to marriage and adoption rights. However, he did not question other legal positions of homosexuals and stated at the beginning of the interview that homosexuals should not be discriminated against in any way. In respect of the professor’s statements associating homosexuals with pedophilia and (serious) child abuse, the Court held that the lower court “found in an unobjectionable manner that the [professor] does not criticize homosexual people in general or with reference to their homosexuality. Rather, he sees ‘pedophilia and severest child abuse’ merely as possible consequences of equality in child adoption by homosexual couples. In order to justify his negative attitude towards the equality of homosexual couples with regard to marriage and child adoption, he states in this respect that in such cases the so-called incest abhorrence is lacking, but in this context he also addresses what he considers to be similar problems with heterosexual stepparents. Accordingly, the regional court found in an unobjectionable reasoning that no direct equation of all or certain homosexual people with ‘criminals’, child abusers and/or pedophiles can be inferred from the interview text of the defendant” [p. 5].
Accordingly, the Court found that the lower court had correctly applied the substantive law and the professor was not punishable under criminal law for insult, malicious gossip, defamation or incitement of masses.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Court confirmed that freedom of expression protects statements that contain both factual and evaluative components, if these are interconnected in such a way that they cannot be considered separately, and that to be guilty of insult a speaker must refer to identifiable individuals.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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