Das Verbot politischer Sprechakte der Regierung

Over the last decade, the German Federal Constitutional Court has established an internationally unusual constitutional restriction on the government. The government may not identify with or criticise political parties in its speeches. The government may explain and defend its policies, but it must remain strictly neutral towards political parties when it speaks. The Court has thus effectively banned political speech acts of the government. The article reconstructs the reasons for this particular government speech doctrine. The doctrine relies on three different arguments: (1) The Court's jurisprudence assumes that when the government speaks, it has a special political authority which distorts competition between the parties (the competition argument). (2) This authority and the media attention enjoyed by the government jeopardise the freedom of citizens to form their political opinions autonomously (the autonomy argument). (3) When the government speaks, it must remain neutral because it speaks for all citizens (the discursive representation argument). The article examines all three arguments and finds them unpersuasive. Each is based on a legitimate normative concern, but none supports the conclusion to prohibit political speech by the government. The political authority of the government, if it exists empirically, does not constitute an unfair competitive advantage. Citizens either trust the government or they do not, according to their own independent judgement. The government therefore cannot control its authority and use it in the same deliberate way as other resources. If government speech remains embedded in a critical public sphere, it does not endanger the freedom of the political process in any meaningful way. Political arguments engage rather than endanger the political autonomy of citizens. Even if the government claims to speak for all citizens, its speech cannot simply be attributed to all citizens. It does not therefore have to remain neutral. The government speech doctrine in its current form overestimates the danger of political speech by the government and underestimates the risks of prohibiting it entirely. The article does not suggest that government speech is not subject to constitutional norms. The requirement of neutrality and the prohibition of political speech, however, are not among them.