[Wikipedia-l] German anti-free speech law and Helga

[Tom Parmenter]

|From: lcrocker at nupedia.com
|Date: Mon, 26 Aug 2002 14:29:53 -0700
|
|>> 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.
|

Just for the record, "People vs. Larry Flynt" was a misnomer.  That's
the name that would go on a criminal prosecution, which this was not,
it was Falwell vs. Flynt in a civil case.  Criminal prosecutions for
speech are very rare, and very hard for the government to win, as the
free naked dancers and flag-burners of America can attest.

See this book:

Rodney A. Smolla, Jerry Falwell v. Larry Flynt: The First
Amendment on Trial (Urbana and Chicago: University of Illinois Press,
1988).  

Quite wonderful.  It will raise your opinion of both Jerry Falwell and
Larry Flynt and your opinion of the First Amendment and the courts as
well. 

Tom Parmenter
Ortolan88