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Judgement for the freedom of speech

Updated: Feb 4

BDS Debate – the city of Munich is subject to the Higher Administrative Court

by Norman Paech

The City of Munich has experienced a welcome defeat by the Higher Administrative Court of Bavaria (Bayerischer Verwaltungsgerichtshof – BayVGH). The city had refused to allow the use of meeting rooms for a meeting where the subject “how much is Munich restricting the freedom of speech?" At that meeting the city council resolution of 13 December 2017 and "its consequences” was to be discussed. With its judgement from 17 November 2020, the BayVGH has recognised a violation of guaranteed basic freedom of expression, and caused the plaintiff Klaus Ried to provide a meeting room.

This raises the question, naturally, why the city does not want to allow open discussion about the city council resolution? It has decreed that “organisations and individuals who want to organise meetings in municipal institutions which address the content, themes and goals of the BDS (Boycott, Divestment and Sanctions) campaign, support them, pursue them or advertise them” should be “excluded from the provision or rental of rooms”.

This is all about the Palestinian boycott campaign BDS, that has found a wide resonance in Europe and is also being fought here, under the suspicion of anti-semitism. The movement is anything but anti-semitism. Its only goal is to move the Israeli government to observe the basic principles of international law, to reverse the annexation of Palestinian land and to end the occupation régime. It is the last possibility of their political resistance. Meanwhile a row of local parliaments have passed an anti-semitism verdict against the BDS movement. As has, finally, the Bundestag also, with its resolution from 17 May 2019 “Resisting the BDS movement decisively – fighting anti-semitism.” This makes discussions about the future of Palestine in public rooms barely possibly, as the BDS movement has increasingly become part of this future.

Meanwhile, Munich does not allow either critical Palestinian or Jewish artists to speak. The showing of the documentary film “Broken – A Palestinian Journey Through International Law and Justice” with the director Mohammed Alatar was prevented. This because “it is to assume that, with a realistic consideration, the meeting cannot take place without engaging with the content, themes and aims of the BDS campaign." And the Israeli musician Nirit Sommerfeld was threatened with the termination of insurance for her concert with her band Shlomo Geistreich. Moreover it was demanded of her “not to express and anti-semitic content” and not to advertise “the contents, themes and goals of the BDS campaign”. Two months before the city council resolution, Judith Bernstein, speaker of the Jewish-Palestinian dialogue group 'Munich', could only make a speech about her home city of Jerusalem after receiving a court order.

The Higher Administrative Court was clever enough not to engage with the by now fully arbitrary differentiation between what is and what is not anti-semitic. They said “even if it were clearly provable according to objective criteria, this would not be of itself a justification for a limitation of the freedom of opinion”. But the Court did opine that only when anti-semitic statements “endanger public peace through public conflict, and thus mark the transition to aggression or a breach of law” - would the the refusal of public facilities justified. But this "cannot be said in conjunction with the BDS campaign according to the currently discernible circumstances”.

In normal times, this judgement would be self-evident. Our constitution and a functioning democracy don’t allow any other decision. But in times of an omnipresent suspicion of anti-semitism, this decision is a great victory for freedom of speech and a slap in the face for the city. Let the judgement act as a precedent. This judgement should have nothing to fear from a revision by the Federal Constitutional Court, that the city now wants to file.

Norman Paech is an emeritus professor for constitutional and internationals law and a former MP for die LINKE. This article first appeared in German in junge Welt. Translation: Phil Butland. Reproduced with the author's permission

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