Prof. Dr. TATJANA HÖRNLE

The subject of this talk are prohibitions of speech and speech acts in criminal law, which are analyzed not from a legal-comparative perspective but from the perspective of criminalization theory. If the ultima ratio principle is taking seriously, criminal laws that prohibit speech need very careful justification. The constitutional principle of proportionality requires that the reasons for prohibitions must be of high importance to warrant restricting freedom of expression. Of the many rationales that are discussed in the context of speech offences, not all are convincing. I will critically assess reasoning that points to the vague notion of public peace, the prevention of hurt feelings (the offense principle) and the protection of group identity. If, however, a prohibition in criminal law is necessary to prevent harm or at least concrete dangers to fundamental rights of individuals, it can be considered proportionate. With regard to hate speech, the right to human dignity also plays a role in justifying prohibitions, but it is essential to keep offense descriptions narrow to avoid the criminalization of offensive speech in general.