Freedom of Speech Is the Citizens’ Shield Against the Powerful, Yet the Powerful Are Becoming Increasingly Thin-Skinned

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In diplomacy one often hears that alliances rest on interests and values. Interests change. Values should endure. Freedom of speech belongs to those values. In any society that calls itself free, it is non negotiable. In Germany today, the principal threat to freedom of speech no longer comes primarily from private platforms, but from the state, and from a growing ecosystem of state funded proxies.

Let me begin with a scene that should trouble anyone raised in a constitutional democracy. An elderly man near Bamberg is awakened by police at six in the morning because he referred to the minister of economic affairs online as a «Schwachkopf», a fool. A house search at dawn for an alleged insult. Ask yourself what kind of political order conducts house searches before breakfast over mere expressions of opinion. Government representatives in Germany like to say that anyone here may say whatever they wish. Yes, until the doorbell rings.

Punishments worthy of a dictatorship

A second example goes far beyond trivialities. At the beginning of 2025, a journalist was sentenced to seven months in prison, suspended on probation, for a meme bearing the text «I hate freedom of speech». The image showed the interior minister holding a sign, a satirical comment on her attitude toward free expression, an attitude reflected among other things in the banning of a right-wing newspaper, a ban that the Federal Administrative Court later considered unlawful. Read that again. A punishment that would fit comfortably in a dictatorship was presented as a defense of democracy. The public prosecutor appealed the ruling, seeking a harsher sentence. If you want to see what a chilling effect looks like, this is it.

In connection with the Bamberg case, I wrote the following on X: «The Bamberg judge responsible for this ruling is named Martin Waschner. Anyone who hands down such judgments should not serve as a judge in a free state, and should not possess the power to imprison free citizens for lawful speech». The Hanseatic Bar Association promptly initiated disciplinary proceedings against me. The accusations are absurd. I have rejected them vigorously, and I will prevail.

Third, the Federal Ministry of the Interior under Nancy Faeser commissioned a report that defamed the respected journalist Henryk M. Broder. We took the matter to court. The Higher Administrative Court of Berlin Brandenburg ordered the ministry to cease distributing the report. It was taken offline, and remaining printed copies were destroyed. The Frankfurter Allgemeine Zeitung summarized the outcome dryly: «Broder humiliates Interior Ministry». The ruling was not narrow. It was a reminder that governments have no constitutional right to be spared mockery, and certainly no right to defame their critics.

Fourth, the Federal Constitutional Court reaffirmed precisely this point in a case we brought on behalf of Julian Reichelt against the federal government. Reichelt, a journalist and former editor in chief of Germany’s highest circulation daily newspaper, had described hundreds of millions of euros in development aid for Afghanistan as «money for the Taliban». A federal minister attempted to suppress his tweet. The government obtained an injunction. The Constitutional Court intervened, overturned the injunction, and found that the journalist’s fundamental rights had been violated. Political speech, particularly speech that is sharp or unsettling, lies at the core of Article 5 of our Basic Law.

Finally, my own dispute with the Federal Office of Justice shows how far government agencies are willing to go in making life difficult for critics. After a court ordered the agency to grant me access to files, it delayed compliance, erected new obstacles, and then encouraged the Hanseatic Bar Association to impose sanctions on me because I had described the responsible official, who ignored the court order, as subordinate and incompetent. A government agency that treats a binding court decision as a mere recommendation does not defend the rule of law. It undermines it. My request for an interim injunction against the federal government regarding this sanction attempt has been pending before the Higher Administrative Court since January 2025.

«A government agency that treats a binding court decision as a mere recommendation does not defend the rule of law. It undermines it.»

Mass criminal complaints

These are not isolated anecdotes. Together they form a pattern. Leading German politicians, particularly from the Green Party, have normalized the practice of filing large numbers of criminal complaints in response to criticism that may be legally permissible but politically uncomfortable. Police resources are squandered protecting the feelings of those in power. And when the state loses in court, it too often shrugs and attempts the next manoeuvre.

A pensioner was fined eight hundred euros for a remark about the then foreign minister Annalena Baerbock. He had written that she had probably «hit her head on the ceiling too often while trampolining». I commented on X: «This is her true face, the ugly, half totalitarian grimace of the Greens. Humorless, merciless, cold. Disgusting». The result was a criminal investigation against me. Section 188 of the German criminal code regulates insult, defamation, and slander against persons in political life and provides enhanced penalties when politicians are targeted. All animals are equal, but some are more equal than others.

There is also a second, more strategic front: the outsourcing of repression. Under our constitution, the state must remain neutral in political debate. Instead, it finances NGOs to do what it cannot openly do itself: monitor speech, report it, stigmatize lawful statements, conduct lawfare, and shape public debate. This is not policy. It is propaganda purchased with taxpayer money. It simulates consensus by funding the choir.

Add to this the European Union’s Digital Services Act, effectively the operating system of Europe’s content control industry. The DSA applies to every service with users in the Union and is backed by fines of up to six percent of global turnover. It grants special roles to «trusted flaggers», privileges reports from governmental or quasi-governmental actors, and pressures platforms to respond quickly or pay dearly. Illegal content is defined according to the most restrictive speech laws of any EU member state. In times of «crisis», the Commission may order «risk mitigation measures», elastic language broad enough to mean whatever yesterday’s panic requires, including throttling lawful debate under the banner of combating disinformation. The predictable outcome is not merely the removal of illegal content. It is overblocking of lawful speech, shadow banning of inconvenient voices, and the quiet intimidation of dissent by compliance departments fearful of Brussels. This is not adjudication. It is administrative censorship on an industrial scale.

The state has no honor

A brief doctrinal aside, because principles matter. For decades the Federal Constitutional Court has held that the state must tolerate sharp and even offensive criticism. The threshold of defamatory abuse is a narrow exception, not the rule. In cases of ambiguity, the interpretation that avoids punishment must prevail. And unlike private citizens, the state has no honor that can be protected through criminal law. These are not quotations for ceremonial speeches but the functional guardrails of a free constitutional order. They must not be dismantled. Yet we now have a bureaucracy that prosecutes satire and a political culture that pathologizes dissent.

Some respond with familiar talking points: this is about combating hate speech. Let us be honest. In many cases that claim is little more than empty rhetoric. A dawn house search over the word «Schwachkopf». A seven-month prison sentence for a meme. A ministerial report withdrawn after it was used to smear a journalist. A minister invoking the Constitutional Court to silence political criticism. None of this has anything to do with protecting minorities or preventing violence. It is about protecting those in power from ridicule and humiliation.

There is also a deeper legal dimension. Freedom of speech is not a gracious concession from rulers to obedient subjects. It restrains the rulers. It is the foundation of criticism of power, enforceable in court and exercised by citizens. If officials are allowed to blur this distinction, a culture of permanent hypersensitivity emerges, with criminal law serving as the enforcement mechanism. That is the game currently being played in Germany: expanding the list of linguistic taboos, inflating alleged harms, outsourcing control to compliant NGOs and platforms, all in the name of «security».

Discipline the regulators

What should be done?

First, freedom of speech must be decriminalized. Criminal law should be reserved for genuine threats and clearly defined cases of incitement to violence, not for impolite adjectives or memes. Anyone who needs prosecutors to protect their feelings may be in the wrong profession.

Second, the proxy armies must be dismantled. Taxpayer money must not finance NGOs to wage political battles on behalf of the state. What the state may not lawfully suppress directly, it must not fund others to suppress indirectly, whether through reporting systems, rating mechanisms, or so-called risk mitigation.

Third, regulators must themselves be disciplined. Emergency powers under the DSA must not become permanent. Any such authority must be strictly time limited, subject to judicial review, and confined to illegal content as defined by law and jurisprudence. The status of «trusted flagger» must be tied to enforceable legal standards, including liability for abusive or grossly negligent reporting.

I welcome, without reservation, the steps taken by the United States government to confront the European Union’s regulatory adventurism in matters of free speech, including its willingness to consider sanctions or tariffs if extraterritorial digital regulation exports censorship. This is not merely a trade dispute. It is the defense of a civilizational norm. If Europe insists on constructing a compliance panopticon, it should not expect to determine speech standards for the entire free world.

Let me conclude on a more positive note. Freedom of speech does not guarantee truth. It guarantees the possibility of discovering truth together. It grants citizens the right to make fools of themselves and imposes the duty to tolerate the foolishness of others. Above all, it confronts governments with reality.

Even in the past year, German courts have demonstrated that these mechanisms still function. An interior ministry rebuked and embarrassed. A federal minister reminded that she cannot silence a critic. A justice agency forced to recognize the rules of the constitutional state. And yes, even after six in the morning house searches and the theatre of anti-hate campaigns, the principle still stands that citizens’ mockery of the state enjoys constitutional protection. That principle deserves to be defended loudly and without hesitation.

Freedom of speech is not a favor granted by the powerful to the citizens. It is the shield of the citizens against the powerful. If Europe forgets this, the United States should remind it, not with sermons but with policy. And on this side of the Atlantic we must do our part, through litigation, legislation, and through refusing to be intimidated by the new clerisy of «security».

«Freedom of speech is not a favor granted by the powerful to the citizens. It is the shield of the citizens against the powerful.»

This article is based on a speech delivered in September 2025 at a conference of the Global Liberty Institute in Zurich.