Demonstration and the relation between freedom of assembly and freedom of opinion

40 (unfenced) parks, and many more, most recently also other ‘places of communication’, like (open areas at) airports.¹³⁷

In the other category belongs every other assembly, ie which is surrounded by wall or fence. The at least partial overlap with French law is apparent: the first places would be largely voie publique, while the latter are not voie publique (there cannot be traffic). Nonetheless, what is considered ‘unter freiem Himmel’ in German law, might eventually not qualify as voie publique in French law, if there is no crossing traffic. As art 8 GG stipulates in paragraph I that freedom of assembly cannot be subject to prior notice or authorisation, and paragraph II only allows limits by law for assemblies under the free sky, it might appear that assemblies similar to réunions cannot be restricted in any way, and it also might appear that prior notice or authorisation is not meant by the

‘limit by law’ (Gesetzesvorbehalt) in paragraph II.

However, this clear division of the constitutional text has been largely eliminated by systematic interpretation. Firstly, the modalities [Art und Weise] of any sort of assembly belong under art 8, ¹³⁸ while the content of any sort of assembly belongs under art 5 I, right to freedom of opinion.¹³⁹ What this means in more detail will be discussed under the next heading on demonstration and the relation between freedom of assembly and freedom of opinion. Secondly, prior notice was found constitutional in cases of assemblies under the free sky, as it will be discussed in the next chapter.

5.2. Demonstration and the relation between freedom of assembly and freedom

41 Thus, whether demonstration is protected by any constitutional right, depends on interpretation of both the particular right and also the nature of demonstration. Candidates from the Basic Law are freedom of opinion, freedom of assembly, freedom of association, and general freedom of action and personality right in art 2 I, and even the principle of democracy as enshrined in art 20 (and entrenched in the eternity clause of art 79 III).

Some would deny any claim to constitutional protection, at least when it comes to

‘large demos’¹⁴⁰, saying that the gathering and going to the place of the demonstration itself is protected by art 8, freedom of assembly, but not the actual demonstration. Still, the majority of the authors confirm the constitutional protection of demonstrations, some conceptualising it as an aspect of freedom of assembly, others as a comprehensive category under which falls freedom of assembly, while again others consider it a combination of freedom of opinion and freedom of assembly.

Roman Herzog famously attached freedom of demonstration to art 2. I, ie the general personality right including general freedom of action. In this understanding, the point of demonstration is ‘personality unfolding in group form’. Thereby he established a connection to human dignity, deemphasising (though not downplaying) the political importance of Article 8, and highlighting participation at a demonstration as a human need of the individual amongst increasing risks of isolation.¹⁴¹

Most authors locate freedom of demonstration partly in art 5 (freedom of opinion), and partly in art 8, freedom of assembly. This is the doctrine of complementary delimitation (komplementäre Verschränkung), according to which demonstration as substance, as message is protected by art 5, while the modalities (arriving, gathering, standing, marching, dispersing, but as it will be apparent, many more) fall under the scope of art 8.¹⁴² In this understanding, freedom of demonstration is a medium of freedom of opinion; it is the instrument for collectively expressing opinions. The one

140 Hans A. Stöcker, ‘Das Grundrecht auf Demonstrationsfreiheit – eine ochlokratische Fehlinterpretation’, Die Öffentliche Verwaltung (DöV) 1983, 993.

141 Herzog, Kommentar zu art 8, above n 126 at Rn. 10-16 zu art 8.

142 Kunig, Kommentar zu art 8, above n 125 at Rz. 37 zu art 8, Schwäble, Das Grundrecht, above n 128 at 59, Konrad Hesse, Grundzüge des Verfassungsrechts der Bundesrepublik Deutschland, 20th edn,

(Heidelberg, C.F. Müller, 1995) Rz. 404, and many more as cited by Dietel, Gintzel & Kniesel, Versammlungsgesetz, above n 127, Rz. 28 zu § 1, note 49 at 43.

42 single real event ‘demonstration’ is covered in its partial aspects by two different basic rights.¹⁴³

This approach has been almost consistently also employed or at least implied in the jurisprudence of the GFCC,¹⁴⁴ in spite that it has not remained without strong critique.

Critics claim that freedom of demonstration is a distinct (even if not distinctly enumerated) basic right, because the expression of opinion of the collectivity is qualitatively different from either the individual speaker or the discussing group. The bodily, direct presence of several persons at the same time and place makes demonstration specific. Being together, same time, same place, conveys a stance, an expression itself. This is very much an aspect the GFCC itself stresses in the Brokdorf decision,¹⁴⁵ but only in par with the modality theory mentioned above.

The debate, theoretical as it might sound, is by far not without practical implications. In case demonstration falls within art 8, it can be limited differently than if it falls under art 5, freedom of expression of opinions.

Art 8 only allows for limitations with regard to assemblies ‘under the free sky’, while art 5 naturally does not include such a spatial distinction on the limits of freedom of opinion. Secondly, outdoor assemblies according to art 8 can be restricted in a statute, ie the form of the limitation is prescribed, but not the substance. Art 5 II, however, lists as limits of freedom of opinion general laws, protection of personal honour, and youth protection, and art 5 I prohibits censorship.

The Holocaust denial decision¹⁴⁶ informs also about the view of the GFCC between art 5 and art 8, more to the point of the relation between expression and assembly, and not the question of demonstration addressed more in Brokdorf. The Court interpreted a condition of no Holocaust denial imposed on a closed indoor meeting as a restriction to be judged by standards of art 5 II. It explained that as the contested

143 Hofmann, BayVBl, 1987, 131, as cited by Dietel, Gintzel & Kniesel, Versammlungsgesetz, above n 127, Rz. 28 zu § 1, note 52 at 43.

144 BVerfGE 69, 315, 343, 345 (Brokdorf, 1985); BVerfGE 82, 236, 258; BVerfG, 1 BvR 2150/08 vom 4.11.2009, Absatz-Nr. (1 - 110), http://www.bverfg.de/entscheidungen/rs20091104_1bvr215008.html (Rudolf Heß memorial march, § 96).

145 BVerfGE 69, 315, 344, see also below the different meanings of the value of expression. Somewhat surprisingly, Dietel, Gintzel and Kniesel do not appear to be aware of this part of the Brokdorf decision, and impute this idea solely to scholars in Dietel, Gintzel & Kniesel, Versammlungsgesetz, above n 127, Rz.

29 zu § 1, at 44.

146 BVerfGE 90, 241 (1994).

43 condition itself refers to ‘certain expressions, which the organiser is supposed neither to mouth, nor to tolerate,’¹⁴⁷ its constitutionality depends on whether the expressions themselves ‘are permitted or not.’ An expression which cannot be constitutionally prohibited, cannot form the basis for an imposition of condition for the purposes of the assembly law, either, or so the Court holds.

It remains unclear why it is not possible that constitutionally proscribable expressions are in fact not proscribed in the law on assembly, or why the right to assembly, as a right ‘without limits’ in this (indoor meeting) case, cannot prevail over the limits of freedom of opinion.

This situation is known as Grundrechtkonkurrenz, competitition of basic rights in German doctrine, and it is not settled which right should be then applicable in general, ie the one with the more, or with the less limits.¹⁴⁸ From the general basic rights friendliness of the Basic Law the less limits alternative would follow, and this view generally is shared by the majority of German scholars.¹⁴⁹ The GFCC has not settled the question in general.

Application of the general scholarly view to the case of competing ‘opinion’ and

‘assembly’ rights would result, at least as to indoor meetings, in the prevalence of the right to assembly, as that has less limits.

In contrast, the GFCC interprets the assembly guarantee as being about the modality, while the substantive guarantee is freedom of opinion. In the Holocaust denial case, the Court explains that the prohibition on Holocaust denial does not violate art 8 I GG even if the right to assembly in closed places is not subject to limits according to art 8 II. Simply the Court argues that expressions which can be constitutionally prohibited under art 5 II are not protected by art 8 either. ¹⁵⁰

This in effect results in the confirmation of the theory, rejected by scholars, that the right with more limits is applicable when two rights are competing, especially if one accepts that the split into content and modality is artificial and false.

147 BVerfGE 90, 241, 250.

148 Ingo v. Münch, ‘Kommentar zu Vorb. art 1-19’ Rn. 43 in Grundgesetz-Kommentar I., Ingo von Münch

& Philip Kunig eds, 5th edn, (München, Beck 2000)., with further references.

149 Ibid.

150 BVerfGE 90, 241, 249 (1994).

44 On the other hand, when it comes to open air meetings and demonstrations, art 5 II’s general law requirement imposes at first look a higher justificatory burden on the state than the simple ‘condition of limit by law’ (einfaches Gesetzesvorbehalt) in art 8 II.

Thus, for demonstrations, the Court has chosen the right with the less limit.

The third sitting blockade decision sheds some light on what the GFCC means by content versus modality. There, the constitutionality of duress (Nötigung) as applied to sitting blockades was measured not on art 5, but on art 8, because the conviction has not attached to the ‘expression, but to the action of blockade aiming at raising attention,’¹⁵¹ as if to say the restriction was content-neutral. The question has to be put again: how come that ‘an action which aims at raising attention’ is not qualified as ‘expressive’?