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However one may ask if the 'immediate harm' principle is actually accepted by any country
at all? Because maybe this 18 th Century concept is one that is too unrealistic or simplistic to be
applied. This is simply not the case, the United States which probably has the strongest protection
of speech of any country, has had many rulings in defence of speech while applying just
these principles. Such as in the court case of Brandenburg v. Ohio (1969), a ruling in favor of
the Ku Klux Klan's freedom of speech, in which the judges held that:
„[...] the constitutional guarantees of free speech and free press do not permit a State
to forbid or proscribe advocacy of the use of force or of law violation except where
such advocacy is directed to inciting or producing imminent lawless action [...]” (U.S.
Supreme Court 1969).
Or Schenk v. U.S. (1919) in which the Judges ruled that: „The question in every case is
whether the words used are used in such circumstances and are of such a nature as to create a
clear and present danger [...]” (U.S. Supreme Court 1919).
The simple „immediate harm” or „clear and present danger” prerequisite sets a bar of minimal
standard, with which we can test if Germany is forbidding speech because of real and
present dangers or if it simply uses this as an excuse to ban speech it does not like, which usually
is the practice in authoritarian regimes.
However it does not follow that all other types of speech which do not meet this „clear and
present danger” criteria are therefore allowed, but it should establish that if speech is criminalized,
a hard burden of proof has to bet met in order to justify why this speech is not protected.
A burden of proof that should be met in only the most extreme of circumstances and therefore
very rarely be valid.
Comparing Free Speech Principles of Dictatorships & Democracies
In authoritarian dictatorships the limits to expression are set clearly enough. For example the
following headlines vividly illustrate where dictatorships draw the line: „Twitter activists jailed
in Bahrain for insulting king” (o.V. 2013), „Egyptian activist detained on charges of insulting
president” (Fick 2013), „[Saudi] Human rights lawyer sentenced to prison for insulting the
kingdom [...]” (o.V. 2014). In these as in many other cases the regimes do not even try to attempt
to prove that there is an imminent harm that followed due to the opinions expressed. It suffices
that the leader was criticized, therefore you are violating arbitrary laws that criminalize such
statements. The Principle on which speech is permitted is clear: Any opinion can be expressed
as long as the leader agrees with that opinion. We conclude simply that there is no actual right
to free expression in these countries.
Of course in comparison Germany's standards go far beyond that of dictatorships, in that
respect they differ to a large extend. Nobody in Germany has to fear prosecution for insulting
the Chancellor because they published critical writings against the Government. Yet, even
though Germany's free speech frame in which opinion can be expressed is much larger, is it in
principle any different? The simple answer is it is not. Germany also makes no attempt at proving
that speech is to be forbidden or punished because of an imminent harm that was caused by
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