Comparing Freedom of Speech in the United States and Germany

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A citizen’s freedom of speech is a fundamental right that is guaranteed by most democracies around the world. In fact, some estimates have it that free speech is a right in almost 165 countries across the globe.[1] While the ideal is one shared by most, the application of the right to real life situations differs amongst countries. Some countries have a broader understanding of the right while others offer a more limited approach. This blog post will compare and analyze the approach taken by the United States and Germany to free speech, specifically with regards to their attitude towards “hate speech”.

In the United States, the right of freedom of speech stems from the First Amendment of the United States Constitution which writes that, “[c]ongress shall make no law . . . abridging the freedom of speech . . .”[2] The United States Supreme Court has elaborated on the right many times and has described that, “the profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks.”[3] The Court paints a picture of an ideal society that is open to the opinions of other no matter how much they might disagree.

In Germany, the right to freedom of speech comes from the country’s Basic Law in Article 5 and it there is clear influence from the First Amendment of United States Constitution.[4] Article 5 reads as follows, “[e]very person shall have the right freely to express and disseminate his opinions in speech, writing and pictures . . .”[5] The German Federal Constitutional Court further mentions, again similar to the ideals of the United States, that freedom of speech is, “quite simply a prerequisite for a free democratic society, [it] makes possible the continual debate, the struggle between differing opinions, without which such a society cannot exist.”[6]

In an attempt to confront its own past and to in the spirit of fighting extremism, Germany is famous for having very strict restrictions on free speech when it comes to “hate speech.”[7] In Germany, when a person speech collides with the rights of others and with other forms of law then it reaches its outrebound and enters the world of restricted speech.[8]Not only is such speech restricted, it can also be punishable as a crime.[9] Holocaust denial, extremist slogans, and distribution of “fake news” arguably fall under the German Criminal Code as punishable forms of hate speech.[10]

In order for “hate speech” to reach a level in which prosecutorial action is to be taken in the United States is a very high mark. The Supreme Court, across many years and multiple decisions, has established that almost all speech, no matter how offensive, will be protected unless such language truly constitutes a “direct incitement to violence.”[11] This would mean that Holocaust denial, “fake news”[12], and other racist or disparaging comments against protected groups would fall under protected speech.[13]As a result, the First Amendment protects public group displays of swastikas, Klu Klux Klan, and other offensive displays.[14] These types of displays and speech would not be protected in Germany and instead people making such displays would be prosecuted as criminal actions.[15]

The differences between Germany’s and the United States’ approach towards “hate speech” has recently been highlighted in the news. U.S. Vice President JD Vance recently spoke out against individuals’ social media posts being highly scrutinized in accordance with German policy of even enforcing their “hate speech” policies online.[16] Vance’s comments came after US broadcaster CBS ran a report on their “60 Minutes” program about German officers arresting a person for posting a racist cartoon on social media.[17] Vance’s comments specifically mentioned the thousands of US troops stationed in Germany and expressed his preemptive disapproval of potential arrests of any soldier for “posting a mean tweet”.[18]

Many reasons have been given to try and explain the differences that permeate the free speech laws of each country. For example, some credit the schism to the “strictly individualistic nature of American society.”[19] Others assign the differences to the extent of mistrust in government in general.[20] Another reason could be that the German shame for their role in the Holocaust and in the other racist policies of the Nazis have forced them to “overcompensate” and accidently over-prosecute ideas or sayings which they do not agree with but that most other societies would see a value in protecting.[21]

The United States’ protections are broad and they have become a foundation of American rights. The United States no doubt has influenced other countries, including Germany, in the development of their right to freedom of speech, but Germany may have drawn a brighter line on what speech is not protected. Germany seems to have taken their line and drawn it too strictly, while the standard in the United States leaves plenty of room for dissenting opinions and even offensive and dangerous opinions. The German restrictions create unneeded and possibly dangerous safeguards that could eventually come to restrict an unwanted dissenting opinion to the ruling party of the time, which would erode the foundations of free debate and democracy. Germany might fall into a slippery slope, while the United States will continue, hopefully, to preserve the right to its fullest. While the motivations are not necessarily clear, what is clear is that significant differences are present in how German and United States law treat and deal with freedom of speech and specifically “hate speech.”

Simon Morgenstern is a Staff Editor at CICLR.

[1] Countries with Freedom of Speech 2024, World Population Review, https://worldpopulationreview.com/country-rankings/countries-with-freedom-of-speech (last visited Mar. 9, 2025).

[2] U.S. Const. amend. I.

[3] New York Times Co. vs Sullivan, 376 U.S. 254 (1964).

[4] Aernout Nieuwenhuis, Freedom of Speech: USA vs Germany and Europe, NETH. Q. HUM. RTS., June 2000, at 195, 199.

[5] Grundgesetz [GG] [Basic Law], art. 5, translation at https://www.gesetze-im-internet.de/englisch_gg/englisch_gg.html.

[6] Supra Nieuwenhuis, note 4, at 198 (internal citations omitted).

[7] Vance criticizes Germany’s free speech laws in remarks to conservatives, Associated Press (Feb. 21, 2025) https://apnews.com/article/jd-vance-germany-trump-europe-cpac-47ef3cc32ad64123f6a0c33e2cced0f2 [hereinafter Vance Germany].

[8] Wolf Zinn, Where do the limits on freedom of expression begin?, Deutschland (Feb. 20, 2025) https://www.deutschland.de/en/topic/politics/freedom-of-expression-germany-law-j-d-vance.

[9] Id.

[10] Zinn, supra note 8.

[11] Nieuwenhuis, supra note 4, at 210.

[12] As long as it does not move into libel or defamation, which is beyond the scope of this post.

[13] Nieuwenhuis, supra note 4, at 210.

[14] Id.

[15] Zinn, supra note 8.

[16] Vance Germany, supra note 7.

[17] Zinn, supra note 8.

[18] Vance Germany, supra note 7.

[19] Nieuwenhuis, supra note 4, at 212.

[20] Id.

[21] Id.