[Wikipedia-l] German anti-free speech law and Helga
lcrocker at nupedia.com
lcrocker at nupedia.com
Mon Aug 26 21:29:53 UTC 2002
>> No, it's not. Insults are speech too, and often high art.
>> We protect them too, and rightly so. As our supreme court
>> has said, "If freedom means anything at all, it means
>> freedom for the thought we hate."
>So I might say "You are an asshole" and you couldn't sue
>me for it in the US? Than our legal system has quite other
>priorities than yours. The German constitution begins
>with the words:
> Die Wuerde des Menschen ist unantastbar.
>Meaning something like:
> The dignity of man is inviolable.
>There was a very interesting process
>some years ago between a soldier and a pacifist
>who has said "Soldiers are murderers". The
>decision of the court was: If you say it as a
>general statement targeting more to "war" than
>to a specific man, it's protected by the right
>of free speech. If you say it to the face of
>an soldier, meaning him personally, than it's
>an insultation and violating the soldiers
>dignity. The pacifist won the case since it
>was a sticker on his car and therefor not
>intended to a specific soldier.
That's definitely a difference in US and German views
of things. "Slander" in the US has to meet a /very/
difficult burden of proof: the speech has to be (1)
false, (2) deliberately maclicious, (3) cause actual
harm, and (4) credible, and presented as fact. Case 1
means that truth is an absolute defense (i.e., you can't
be sued for slander for saying someone is cheating on
his wife if he is, in fact, cheating on his wife).
Condition 2 is often the hardest to meet: you have to
prove that the person making the slanderous statements
did so intentionally to cause harm, i.e., with "malice
aforethought". Thirdly, you have to be able to demonstate
that you were actually harmed in some way. Merely being
insulted does not harm you--the "dignity of man" should
be able to take a punch without crumbling. But if the
speech really did cause harm, such as costing you business,
or losing friends, etc., then you must demonstrate that.
Finally, the speech must be in a form that appears to be
statements of fact, credibly expressed. Opinion, humor,
parody, and such are categorically immune. "I think Bill
is an asshole" is an immune opinion. But "I saw Bill hire
a hooker", reported as fact, might be slanderous if it
causes Bill's wife to leave him or something.
For a good flavor of the American point of view, I recommend
watching the movie "People vs. Larry Flynt". Mr. Flynt
published a magazine with a parody that included Jerry Falwell
describing a sexual encounter with his mother. "Slander" wasn't
even an issue--since it was humor, it was immune, so no court
would even hear that. But Falwell sued under a different cause
of action, "Intentional infliction of emotional distress".
That too was eventually thrown out. Public figures simply have
to expect people to make fun of them and learn to deal with it.
As I've expressed it before, tolerance is more an obligation
of listeners than it is of speakers.
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