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However, as the prosecution knows, in order to have a chance at a ruling against the NPD,
it has to be proven that the NPD has an actively hostile demeanor against the existing order
(„aktiv kämpferische, aggressive Haltung gegenüber der bestehenden Ordnung” (Bundesverfassungsgericht
1956: 3)). This is the wording used to justify the ban of the KPD party in 1956
by the German Constitutional Court. However, in the NPD case what exactly this actively hostile
demeanor against the existing order looks like is not clear as it is not defined in unambiguous
terms.
What is clear however is that the government seeks to prove that an actively hostile demeanor
against the existing order is evident, by citing mainly NPD speech. Therefore drawing
the conclusion that words essentially amount to weapons which are used as such against the
state.
However according to the German constitution the right to freedom of speech is guaranteed.
As a result the question arises in what sense and how far is the right to freedom expression
protected in Germany? Does that 'German' protection of speech even have a moral value in the
way it is applied? In other words on what principles is free speech protected in Germany?
The Concept and Limits of Freedom of Speech
So far we have established that the German government seeks to ban the NPD party by presenting
evidence which is largely based on speech. The government argues that to a substantial part,
words alone are enough to prove that a party ought to be banned from political participation.
Presumably because in the examples cited, words are weapons and have the effect of actions as
defined by the BVG. Next we seek to investigate if German democracy really does value freedom
of expression based on principles that go beyond what dictatorships would accept.
To do that it is necessary to lay out the concept and limits of freedom of expression. We
then use this formula to explore how these principles are upheld in non-democratic regimes in
order to compare them to the German principles of free speech protections, to establish that
German democracy does not value freedom of expression based on principles that go beyond
those of a totalitarian doctrine.
The Concept of Free Speech
„I do not agree with what you have to say, but I'll defend to the death your right to say it.”
(Voltaire in Boller 1989: 124–126)
The famous quote often attributed to Voltaire many would agree in essence captures the basic
principles on which Free Speech is based. 19 th Century philosopher John Stuart Mill offers a
similar interpretation: “[...] there ought to exist the fullest liberty of professing and discussing,
as a matter of ethical conviction, any doctrine, however immoral it may be considered” Mill
1859: 102). Another alternative comes from MIT's Noam Chomsky, who stated in defence of
the rights of holocaust denier Robert Faurisson: „that it is precisely in the case of horrendous
ideas that the right of free expression must be most vigorously defended; it is easy enough to
defend free expression for those who require no such defense” (Chomsky 1980).
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