The claim that freedom of expression is one of the foundations of a democratic society has been invoked on numerous occasions in major constitutional decisions in Europe. Historically, the normative edifice of modern democratic societies owes a great deal to the fight against censorship and the development of freedom of communication and information—so much so that freedom of expression may be regarded as one of the essential conditions or “presuppositions” of a democratic order, as is very clear from the constitutional jurisprudence of the Federal Republic of Germany. Article 5 of the Basic Law of 1949 states: “Every person shall have the right freely to express and disseminate his opinions in speech, writing and pictures and to inform himself without hindrance from generally accessible sources.” From the outset, the right not to be “disturbed on account of [one’s] opinions” invoked in Article 10 of the Declaration of the Rights of Man and of the Citizen of 1789, which guarantees the citizen a private sphere free of any interference, was understood in its active sense; in addition, the right to express and disseminate one’s opinion was linked to the right to free access to public sources of information. Indeed, it is the free formation of opinion that is at stake here, so long as it is carried out “in the provisions of general laws” (art. 5.2 of the German Basic Law) and in “allegiance to the constitution” (art. 5.3).
However, it remains to be seen to what extent freedom of expression and democracy presuppose one another…