Freedom of Speech in the West: A Comparative Study of Public Law in France, the United States, and Germany

By Frede Castberg | Go to book overview

Chapter Five
LEGISLATION AND ADMINISTRATION

I. Legislation

1. A survey of relevant penalty clauses in force. In deciding the legal limits to political freedom of speech in the Federal Republic, one must refer to the rules of criminal law about punishment for crimes against the national Constitution, internal and external security, and the dignity of the governmental bodies. Numerous provisions of interest in this connection are found in the penalty laws of 1871, with later alterations, '' 80-98 (the sections on acts of high treason and acts endangering the state).

' 80 (1) 1 and 2 establishes punishment--up to life imprisonment--for anyone who attempts, by force or threat of force, either to change the Constitution, or to incorporate the Federal Republic in a foreign state, or to detach part of the federal territory. Imprisonment for a period of up to ten years can, under Article 81 (1) be awarded to anyone who prepares such a treasonable enterprise. This last provision undobtedly affects propaganda containing an appeal to take arms immediately against the existing régime in order to realize an overthrow of the Constitution or a detachment of a territory.

The provisions in '' 88 ff. are directed against "endangering the State" in various ways. This does not require any intention of immediate action by violent means. The provisions in question are aimed on the other hand at that undermining of the existing régime which in our day can occur by means of aggressive propaganda against the basic values of the Constitution or against the state's territorial existence. The constitutional principles which

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