The question is how the decision was justified. The main arguments enumerated in the decision of the higher administrative court are as follows: the freedom of assembly according to Art. 8 (1) of the German Constitution gives Germans the right to assemble peacefully. Accordingly, (2) outdoor assemblies can be restricted. Article 15 I of the assembly law (VersG) functioned as the basis for the limitation of video screen use, whereby a legal restraint can be ordered by the authority if there is a likelihood of a risk of danger to public safety or public order during a demonstration. According to the court, a live-streamed speech of President Erdoğan would emotionalize demonstrators in such a way that an aggressive mood could develop in the crowds. Due to this potential negative response, felonies by the demonstrators were predicted by the court. Additionally, they purported that oppositional demonstrating groups would be antagonized by the live stream, which would result in a series of criminal altercations between the opposing groups.

It is obvious that this type of reasoning contains many problems. Firstly, as Professor Nils Schacks pointed out on Verfassungsblog.de, the minimal requirements for a concrete danger in the context of article 15 I VersG were not met: the danger of social misconduct had to be predicted ex ante when the court decision was made. The reality was that there were no concrete indications of criminal behaviour by the demonstrators. Furthermore, if other protesting groups were to interfere with the demonstration, this would imply a criminal threat to the demonstrators that would then necessitate police intervention to provide security for the event. Ex post, the demonstration in Cologne took place peacefully, even though many more people attended than initially expected.

In fact, previous speeches by President Erdoğan in person in Germany had never resulted in civil disorder. Additionally, as legal analyst Christian Rath of Die Tageszeitung stated, the freedom of assembly in Article 8 of the German Constitution includes the right of the demonstrators to appoint the speaker(s) for the gathering. Other opinions focused primarily on the persona of Erdoğan rather than the actual right to choose the speakers for the demonstration. In this regard, Heribert Prantl of Süddeutsche Zeitung incorrectly stated that it was not possible to compare Erdoğan’s live broadcast to the Pope. However, if the speaker was the main criterion for a public broadcast, it should be legally impossible to justify how, in 2011, a significant functionary of the terrorist organization PKK was allowed to be live streamed in a football stadium in Cologne from Iraq. This is a clear violation of the right and principle of equality according to Art. 3 (1) of German Constitution. Furthermore, within the spirit of Art. 8 I of the constitution, this view is surprising, as it is a classically broad constitutional right, which even gives Nazis the right to march and demonstrate.

But perhaps the most important assumption made by German officials regarding the demonstration in Cologne, aside from the purely legal viewpoint, was that it was portrayed as a simple “pro-Erdogan” event in many media reports. The demonstration was a clear message from the supporters of Turkish democracy; however, the repercussions were even worse as hysteria dominated the political debate on Turks supporting this event. Currently, the already limited dual citizenship for Turks is so seriously doubted and discussed in the measures of an “Anti-Terror-Catalogue” that one option is to cancel it. Finally, it has to be pointed out that a speech by a supreme Turkish authority could have been interpreted as a strong and symbolic behaviour for representative democracy. This has to be considered through the lens of traditional civil rights in which public communication is constitutive for a free democratic order.

The dilemma begins when the rights, or values, of two individuals clash with each other.

The most recent major cause célèbre on the subject occurred in Germany in March 2016, and can be found in legal texts such as Erdoğan vs. Böhmermann. The German comedian Jan Böhmermann used his television show to demonstrate the extents, and test the limits of free speech in Germany by giving a practical example in the form of a poem. This poem was called Schmähkritik (abusive criticism), which is a legal concept by the German Constitutional Court and will be defined later, and contained 24 lines that were filled with profanities and, more importantly, Islamophobic and anti-Turkish stereotypes targeting the President of Turkey.

Before the broadcast, Böhmermann demanded that the Turkish flag be displayed as his background, and that his reading of the poem be accompanied by a German instrumental song which was substantiated by oriental rhythms. Combined, these two elements were intended to ensure that Recep Tayyip Erdoğan knew that this poem was intended for him. This poem became the center of debate in daily German politics for weeks and, even more seriously, provoked a diplomatic issue between the states of Germany and Turkey. The media asked many legal scholars for their opinions regarding the limits of free speech, and not surprisingly, individual scholars used radically different arguments to justify their views.

For instance, one legal scholar favored the interpretation that the whole situation of the satire should be seen in relation to the bigger picture: Böhmermann, so his defenders said, used harsh words, indeed, but this display of disdain for the President of Turkey is not supposed to be seen as isolated; rather, it should be seen as highlighting a theme that was occurring in many forms of media, from cinema to books. This view is also favored by the administrative tribunal of Berlin in it’s decision whether the poem can be read out loud in front of the Turkish embassy in Berlin. This was prohibited by the court with the reference to the mentioned argument that poem singularly is an insult and not protected by free speech.

The court decision proves that the poem itself is a criminal act in the form of an insult, without a doubt.

This court decision proves that the poem itself is a criminal act in the form of an insult, without a doubt. But Böhmermann’s use of a clearly insulting poem shows us the scope of, and the lack of limitations on, free speech in Germany. This leads us to the interesting question: should an evident illegal act as codified in criminal codes in the majority of legal systems around the world become legal simply by announcing beforehand that your intention with your future actions is to insult someone? What’s more, if we take a look at the big picture, then the whole preparation and background of the poem – aside from the content – must be taken into consideration.

One consideration is that Böhmermann stated that this part of the show and poem was directed at the President of Turkey by naming him. Another consideration is that Turkish subtitles of the poem were displayed on the screen while Böhmermann read the poem aloud. The announcement that free speech is provided under the German constitution was not made, nor was the fact that there exists a German legal requirement of “showing the limits of free speech“presented in the Turkish language, so that an intention to inform the Turkish president about these legal subtleties can’t be seen by the moderator. After examining these more subtle attacks that exist outside of the pure content of the poem, it becomes clear that this manifestation of free speech as entertainment must be limited. Böhmermann’s “criticism” had no political dimension, except to unleash vulgar attacks on the person of Recep Tayyip Erdoğan.

It is a legal principle that rights are not absolute. The legal history of the United States provides us with the metaphorical example of “shouting fire in a crowded theater,” which basically means that, under certain circumstances, the freedom of speech is not boundless. With regards to the Böhmermann case, Article 5 paragraph 2 of the the German Constitution explicitly states that free speech finds its “limits in the provision of general laws, in provisions for the protection of young persons, and in the right to personal honour”. Examples of the referenced general laws can be found in Section 103 (Defamation of organs and representatives of foreign states), 130 (Incitement of hatred) or 185 (Insult) of the German Criminal Code. The German Federal Constitutional Court constructed the so-called Schmähkritik so as to limit the freedom of expression in their jurisdiction. This type of criticism does not intend an intellectual discussion and, on the contrary, puts the defamation of the person in the foreground.

This is especially the case when the sphere of intimacy is attacked, such as a person‘s sexual life, or human dignity is violated and therefore outweighs, or overrules, the freedom of expression (BVerfG, Beschluss v. 03.06.1987, Az. 1 BvR 313/85). In short, from a legal perspective, the requirements of Section 103 and 185 of the German Criminal Code is compiled so that individuals who behave as Böhmermann has behaved will be found culpable. Erdoğan has already reported an offense which was authorized by the Federal Government. But one of the most difficult things to do within the context of law is to predict a sentence. Two lawyers, three opinions.

Nevertheless, the law is pragmatic and will find a solution. But what about other norms that are non-binding, such as morality?

Nevertheless, the law is pragmatic and will find a solution. But what about other norms that are non-binding, such as morality? Professor Uwe Volkmann from Goethe University of  Frankfurt rhetorically asked in his Verfassungsblog “A rock bottom and one more rock bottom and one more rock bottom” whether the way Böhmermann delivered his poem shall be the way that public discourse should be led in the future. Volkmann warns that society will be stultified if debates are led with jargon à la Böhmermann. The sophistication of public debate should be respected and, in the meantime, he expresses his regrets that decency within discussions has been lost.

Within this context, we should more intensely debate the ethics of art, instead of giving a free pass to anything that is connected to, or claims to be, art. When the incredibly complex act of peacefully living together is taken into consideration, especially in multi-cultural societies, the law should not periodically educate people about what they are allowed to say and what they should keep to themselves in private. Rather, a sense of decency has to be a norm within society. It might be important to recall the categorical imperative of Immanuel Kant which connects morality and law in a utopian but adjusted manner: “Act only according to that maxim whereby you can, at the same time, will that it should become a universal law.”