[Wikipedia-l] German anti-free speech law and Helga
tompar at world.std.com
Mon Aug 26 23:37:31 UTC 2002
|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,
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
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