Free and Equal Speech. The Constitutional Law of Political Speech Acts

• Applicant: Dr. Christian Neumeier
• Subject Area: Public Law
• Term: since 2024
• Project identifier: Deutsche Forschungsgemeinschaft (DFG) - Project number 553258005

According to a famous dictum of the German Federal Constitutional Court, freedom of opinion is “absolutely constitutive” for democracy. But what does it mean to understand freedom of expression as a democratic right? Democracy is based on the promise of equal freedom. In modern democracies, political rights are therefore rights of equal freedom. In electoral law, this idea is embodied in the concept of a strict equality of votes: one citizen, one vote. How can the second political right of modern democracies – freedom of opinion – be understood as a right of equal freedom? This is the central research question of the project. It has not yet been systematically examined. What norms and ideals of freedom and equality the current constitutional interpretation of the Basic Law’s guarantee of freedom of opinion entails remains an open question. The project aims to develop a democratic theory of freedom of opinion. It examines how the democratic significance of freedom of opinion makes it a special fundamental right and what this implies for its interpretation. The working hypothesis is that freedom of opinion cannot be understood as a right to communicative autonomy or individual self-expression, but rather as a right to access and act in the social space of reasons. In the space of reasons, citizens face each other as free and equal, just as they do when they vote, but they are subject to different constitutional rules. The project thus has two aims: (1) It analyses freedom of opinion as a specific version of the universal right to freedom of speech. To this end, it develops a new conceptual framework to examine German legal doctrine from a comparative perspective by introducing two central concepts: the social space of reasons and the political speech act. They allow for a more nuanced analysis of the democratic meaning of freedom of opinion than traditional concepts such as communication, public sphere, public opinion or expression. However, the ‘constitutive relationship’ between freedom of opinion and democracy is not one-sided. Not only does freedom of opinion constitute democracy, but democratic legislation also specifies and limits the right to freedom of opinion through general laws according to Article 5 (2) of the Basic Law. (2) The project therefore aims to develop a model for evaluating democratic restrictions on freedom of opinion. New communication technologies have made it possible for the first time to take seriously the democratic promise of free and equal speech. At the same time, they also raise the question of which rules should govern the interaction of free and equal citizens in the space of reasons more urgently than ever before. It is therefore necessary to re-examine the democratic significance of freedom of opinion and the implications it carries for potential democratic constraints.

• DFG Programme: Research Grants